Westlake v. Horton

Citations

• 85 Ill. 228

Syllabus

<p>1. Pleading and evidence—defense must be set up inpleadings. Where a bill shows the execution of a mortgage to secure a bona fide indebtedness, and afterwards a deed absolute in form for the same purpose, and payment, and asks for a satisfaction of the mortgage and a reconveyance, and the defendants, in their answer, deny full payment, and claim that the deed was given on an absolute sale, the defendants will not be allowed to make the point that the mortgage and deed were executed to hinder and delay creditors, as a defense, that not being set up in the answer.</p> <p>2. Mortgage—deed given to secure debt. Where the pleadings and proof clearly show that a deed, absolute in form, was given merely to secure the payment of an indebtedness, and the subsequent payment of such indebtedness, a reconveyance will be decreed.</p>