Richardson v. Hadsall

Citations

• 106 Ill. 476
• 1883 Ill. LEXIS 194

Syllabus

<p>1. Witness—competency—defendant in chancery against an executor seeking a foreclosure. On bill by an executor to foreclose a mortgage given to his intestate, a defendant, if a necessary party to the bill, is incompetent to testify as a witness to payments made by the mortgagor, his co-defendant, to the testator.</p> <p>2. Parties—on bill to foreclose. On bill to foreclose a mortgage, all persons interested in the mortgaged premises should be made parties. A tenant in possession under the mortgagor is a necessary party defendant. If not made a party, his interest will not be cut off by the decree.</p> <p>3. Writ of possession—on failure to redeem from sale on foreclosure—and against whom. Where no redemption is had from a foreclosure sale, the purchaser, after taking out a deed, is entitled to a writ of possession, but it can only be issued against the defendants in the bill, and those claiming under them, after the suit was commenced.</p> <p>4. Evidence—credit indorsed on note may be explained. An indorsement on the back of a note, of money received, is but a receipt for money, and open to explanation, the same as any other receipt. If a credit is indorsed for more money than was actually paid, the holder of the note may show that fact, and the true amount will be allowed, and no more.</p> <p>5. Gift—proposed and intended gift not binding. Where a man made an indorsement upon a mortgage due him from a third person, “I hereby agree to allow M. K., wife of A. B., a niece of mine, $1200 in my will, and if her equal share should not amount to that sum, to take the amount out of the whole pile,” but died without making such provision in his will: Held, that this showed a clear intent to make a gift in the future by will, but so long as it was unexecuted, and based upon no consideration, it could not be binding on the party or his executor.</p> <p>6. Chancery— decree making no disposition as to one defendant. If one of the defendants in a bill to foreclose a mortgage h