Parkhurst v. Race

Citations

• 100 Ill. 558
• 1881 Ill. LEXIS 146

Syllabus

<p>1. Limitation—to writ of error—how presented. In the absence of a plea of the Statute of Limitations to a writ of error, or some other matter in the record showing that the suit brought by a minor comes too late, a suggestion in argument that the suit is not brought in time can not be considered.</p> <p>2. Allegations and decebe—must correspond. It is error for the court to find a fact not alleged in the pleadings of the parties, but stated directly the reverse, and against the entire evidence preserved in the record.</p> <p>3. So, where a party by his answer to an original bill, and in his cross-bill, alleges a redemption from a master’s sale on foreclosure, which fact is proven by the evidence in the case, it is error for the court to find in favor of such person that no redemption had been made, or attempted to be made, and invest him with the title to the premises as a purchaser of the certificate of the sale, and thereby deprive a minor heir of her title, which was saved by the redemption.</p> <p>4. Ohanceby—presumption m favor of a finding of facts. Where it appears that oral evidence was heard on the trial of a chancery suit, which is not preserved in the record, and the decree contains a recital of the facts proven, in the absence of anything in the record to the contrary it will be presumed that the findings and recitals in the decree were sustained by proofs not in the record; hut when such finding is directly contrary to the finding of this court previously had in the same case, and such fact is not alleged- in the pleadings, but is at variance with the pleading of the party relying upon such supposed facts, and it is proven in the ease not be true, such a presumption of course can not prevail.</p> <p>5. Redemption—effect upon title under the sale. No title can properly be deduced through a sale under a foreclosure of a mortgage, after that sale has been rendered inoperative by a redemption.</p>