Sheldon v. Patterson

Citations

• 55 Ill. 507

Syllabus

<p>1. Parties on foreclosure—wife of the mortgagor. Where it appears, in a suit to foreclose a mortgage, that the acknowledgment of the wife of the mortgagor was not such as is required by law, she is neither a necessary nor a proper party to the suit.</p> <p>2. Res adjudicata—in what manner availed of so as to be conclusive in another suit. Whatever may be the true rule in regard to the effect to be given to a judgment rendered in a court of concurrent jurisdiction, when given in evidence in another suit in which the same question is involved, and between the same parties, without having been pleaded as an estoppel in bar, the party having had an opportunity so to plead it, all the authorities agree that when there has been no such opportunity, in the course of the pleadings, to plead the matter of estoppel in bar, and it is offered in evidence, it is equally conclusive as if it had been pleaded.</p> <p>3. In this case a bill was filed to foreclose a mortgage, to which the defendant interposed an answer, setting up that the contract to secure the performance of which the mortgage was given, was usurious, and, under the laws of the State of Wisconsin, where the contract was made, was void. After the filing of this bill, and before answering the same, the mortgagor commenced proceedings in the State of Wisconsin, in a court of competent jurisdiction, for the purpose of having the note and mortgage declared void on account of their usurious character, and a decree was rendered therein accordingly, after the issue was made up in the foreclosure suit, but before the final hearing thereof: Held, inasmuch as the mortgagor had no opportunity to plead the former judgment as an estoppel, in the suit for foreclosure, the pleadings being closed before it was rendered, but gave it in evidence under the answer setting up the usury, it was equally as conclusive as if it had been pleaded.</p> <p>4. Strict foreclosure—whether allowable. In a suit to foreclose a mortgage, where it d