Winchell v. Edwards

Citations

• 57 Ill. 41

Syllabus

<p>1. Mortgage—-foreclosure—scire facias. It is legal and proper for the mortgagee to foreclose a mortgage by scire facias for the use of another person. And such a judgment is valid and conclusive upon parties, and privies, the latter being of three kinds—by blood, in law and byr estate. The heirs of a defendant to such a proceeding are privies, and concluded by the judgment.</p> <p>3. Sale on execution—en masse—may be set aside—when. Although the execution is valid, and both the judgment and execution properly described the land, the irregularity in selling en masse, instead of in parcels, gives the defendant a right to have the sale set aside, and so with other irregularities, but the right may be lost by laches.</p> <p>3. Same—acquiescence in. Where a defendant was present at the sale, and cognizant of the judgment, and manner in which the sale was conducted, and remaining in the country for nearly a year after the time for redemp tion had expired, and taking no steps to set the sale aside, and then leaving for California, there arises a strong presumption of acquiescence, and his heirs can be in no better position.</p> <p>4, Same—description of the premises. The description of the premises ordered to be sold by the judgment and execution, was, lot 3, block 51 in school section addition to Chicago. The lot was levied on as thus described, and is the same in the sheriff’s deed, with these additional words, “ except 59 feet off the west end ” sold to McG-raw, of which he was then in the occupancy: Held, that even if this exception was uncertain and void, still that is no ground for setting aside the sale, as it is a matter by which McGraw or his grantee alone could be affected.</p> <p>5. Evidence—destruction of by pan-ties. Where a party is proved to have suppressed any species of evidence, or to have destroyed or defaced any written instrument, a presumption arises that had the truth appeared it would have been against his interest, and the fabrication of evidenc