Windett v. Connecticut Mutual Life Insurance Co.

Citations

• 130 Ill. 621
• 22 N.E. 474

Syllabus

<p>1. Chancery—decree in violation of agreement—as, taking a decree ■of foreclosure after an agreement to extend the time—remedy. The holder of a mortgage exhibited his bill in chancery in the Circuit Court of the United States, for a foreclosure. Personal service was had on the mortgagor, his default entered, decree of foreclosure, and sale, the mortgagee being the purchaser. After the statutory time for redemption had expired, the master made a deed. Subsequently, the mortgagor ■exhibited his bill in chancery in the circuit court of Cook county, in this State, to redeem, alleging that the decree of foreclosure in the United States court was taken in violation of an agreement by the mort.gagee to extend the time of payment of the mortgage debt, and to ■reduce the rate of interest: Held, that conceding the ground for relief to have been established, the remedy of the mortgagor was by application in apt time to the court in which the suit for foreclosure was. pending, where, upon a proper showing, appropriate action would be taken.</p> <p>2. Res judicata—as to defense not made. A final decree of the United States Circuit Court, finding the sum due and ordering a sale of mortgaged premises for the debt and costs, is conclusive of the fact that the mortgage debt was due and of the sum due, and the mortgagor can not be heard to allege, by bill seeking to redeem, that the decree of foreclosure was taken in violation of an agreement to give further time for payment and a reduced rate of interest. These being matters involved in the issues passed upon in the suit to foreclose, became res judicata, and not open to re-litigation.</p>