Pollock v. Maison

Citations

• 41 Ill. 516

Syllabus

<p>1. Practice—source of title in ejectment. In an action of ejectment for the recovery of mortgaged premises against the widow and heir of the mortgagor, the plaintiff need not trace title back of the common source, and it cannot matter whether an affidavit of the loss of a deed, in the chain prior to the mortgage, is sufficient or not, as the deed itself is not material in showing a right of recovery.</p> <p>2. Mortgage—ejectment on, after the debt is barred. At common law, after twenty years had elapsed from the maturity of the debt, without possession taken, payment made, suit brought, or some other act recognizing the debt as still subsisting, a payment of the debt was presumed and a foreclosure defeated both at law and in equity. And this too, although specialty debts were not within the act of the 21st of James I, by analogy to the statute of limitations.</p> <p>3. Same — incident to the debt. The mortgage is an incident to the debt, and but a security, but it confers the right to reduce the premises to possession as a means of obtaining satisfaction of the debt; and, to render the right effective, ejectment may be maintained against , the mortgagor at any time that a recovery may be had on the debt.</p> <p>4. Same — entry after breach until barred. After breach, the mortgagee may enter, until the entry is tolled by the statute of limitations, as in other cases, and equity follows the law. Limitation laws toll the entry or bar the action.</p> <p>5. The debt — when barred,—the effect. The mortgage debt is barred, under our statute, in sixteen years; and when it is barred, the entry is barred, and the right to foreclose is gone. When the debt—the principal thing—is gone, the incident—the mortgage—is also gone, and then'a foreclosure cannot be had in any of the various modes. If a bar of the incident operates to bar the principal, a bar of the latter must bar the former. A judgment or decree in bar of the debt, bars every mode of foreclosure. The mortgagee may r