Sidwell v. Schumacher

Citations

• 99 Ill. 426
• 1881 Ill. LEXIS 191

Syllabus

<p>1. Ejectment — plaintiff must recover on thé strength of his own title. It is a familiar principle that a plaintiff in ejectment must recover, if at all, on the strength of his own title. The defendant’s possession will not be permitted to be disturbed until the plaintiff has shown a clear title as against him.</p> <p>2. Same — proof to support a claim under a mortgage as against a deed by the mortgagor. Where both parties in ejectment claim title to land through a common source, the defendant through a deed, and the plaintiff through the foreclosure by scire facias of a mortgage given by the grantor in the deed, it ■will be incumbent on the plaintiff to show that the mortgage was made before the deed under which the defendant claims, in order to recover.</p> <p>3. Possession- — as evidence of title. The plaintiff in ejectment, in making out his claim of title, gave in evidence a judgment, execution, and deed of the sheriff, in a proceeding by scire facias to foreclose a mortgage on the premises, and then proved that some time before the foreclosure the mortgagor had been in possession of the premises for several years, claiming the same as owner. It was held, the fee simple title was established in the mortgagor by such proof of his actual possession of the premises, under claim of ownership.</p> <p>4. Special execution — is process. A special execution for the sale of mortgaged premises, issued under a judgment of foreclosure by scire facias, is process, within the meaning of the constitutional provision requiring all process to run in the name of the People. Such provision is mandatory, and not merely directory.</p> <p>5. Same — sale under, when void. A sale of land under an execution, general or special, that does not run in the name of the People, or that is not under the seal of the court, or that is not signed by the clerk, or directed to the proper officer, is absolutely void, and may be successfully resisted in any kind of a proceeding, or in any forum i