Walker, J.
Was the proceeding, by scire facias, sufficient to bar the equity of redemption, in the premises embraced in the second mortgage executed by McClure to Hubbard ? It is insisted that it was not, for several reasons. First, because it is alleged that the returns to the writs did not give the court jurisdiction to .try and determine the case. The sheriff’s return to the first of these writs was, “ Josiah E. McClure not found, November 7th, 1842.” This was the return day of this writ. The return of the second was this: “ The within named Josiah E. McClure not found, March 25th, 1843.” This latter writ was tested on the 18th day of January, 1843, and was returnable to the term to be held on the first Monday of March, and it was returned during that term. There is nothing in the record which indicates when the writs came to the hands of the officer. But in its absence, the law will presume that they were delivered at the time they were issued. Neither the statute, nor the practice require the officer to indorse the date of their delivery to him, and we can perceive no necessity for such evidence. The statute has only required service, or two nihils, to authorize the court to proceed to hear and determine the case.
It is again urged, that these returns only imply, that the defendant was not found on the day named in the return. It is not usual, if it has ever been done, for the officer to certify that he has not been able, during the whole time the writ was in his hands, to find the defendant. Mr. Justice Blackstone, in his Commentaries, vol. 3, p. 283, says, if the sheriff is unable to find the defendant, he returns “ that he is not found, non est inventus,.” The language of these returns is, in substance, and almost precisely the same as that required by this authority. They clearly conform to the requirements of the law, and are strictly in conformity to the general practice, and must be held sufficient. If the return is, that service has been had, then it should distinctly appear at what time, so that it may appear whether it was as long as ten days before the return day of the writ.
It is likewise urged that the judgment is invalid, and therefore fails to bar the equity of redemption, because Richards was not made a party to the proceeding. Had this been a proceeding in equity, this would be undeniably true. But as it is a proceeding given and regulated alone by statute, and is in a court of law, the conclusion is irresistible, that it was the design of the legislature, in the absence of a requirement that it should be in the form of an equitable proceeding, that it should be governed by the practice of the courts of law, and not of equity. This court held, in the case of The State Bank v. Wilson, 4 Gilm. 57, that the statute authorizing this mode of foreclosure, has given the judgment the effect of a recovery at law, against the mortgaged premises. That it creates no new liability, but is merely a means of rendering a former lien available. And that, “ the purchaser under the judgment acquires all the right in the mortgaged premises, which the mortgagor had, at the time of the execution of the mortgage, entirely unaffected by the title or lien of purchasers or incumbrancers subsequent to the recording of the mortgage, or with notice, who in order to save themselves, must redeem as in case of an ordinary sale on execution at law.”
In all suits at law the proceedings are confined alone to the parties to the transaction. In no proceeding in that form, are subsequent purchasers or incumbrancers ever made parties, but are required to take notice of the proceeding, and failing to do so, their rights are not protected. A plaintiff after recovering a judgment is not required to give notice to persons having subsequently acquired rights, before he can proceed to sale and satisfaction. He may sell, and they, to preserve their rights, must redeem within the period limited by the statute. This then being a proceeding and judgment at law, the rights of the parties must be governed by the rules of law and not of equity. The statute having authorized a foreclosure in this mode, and not having required any person but the mortgagor and mortgagee, or, in case of their death, their executors or administra tors, to be made parties, and the statute having been complied with, it must be held sufficient.
The decree in bankruptcy was rendered in May, 1842, and the last writ of sci. fa. was sued out in January, 1843, and judgment was rendered in the month of March following. Thus it will be observed, that, by the operation of the bankrupt law, McClure’s equity, by the decree, had passed to Richards, before the judgment was rendered; in fact, before the proceeding was instituted by the scire facias. By the decree in bankruptcy, Richards was appointed assignee, and succeeded, by that act, to McClure’s interest in the land which passed to him; and how can it be said, that the District Court still retained exclusive jurisdiction over the land ? It no doubt still had jurisdiction and power over the assignee, and might affect the title transferred to him, or the title of other parties, by further proceedings, but having transferred the bankrupt’s title in the land to the assignee, its exclusive jurisdiction over the land itself, if it ever had any, was at an end.
But even if this were not so, the proceeding in bankruptcy was in a different State, and parties there having an interest in the land were not chargeable with the notice of lis pendens. And as the application of the mortgagor was for the benefit of the bankrupt law, and not for the sale of the land, or any proceeding to affect the mortgagee’s interest, no reason is perceived why a sci. fa. might not have been sued out whilst his application was pending. The legal effect of that decree, as far as it related to this land, was simply to pass the mortgagor’s equity of redemption, precisely as if it had been transferred by deed. It appears then, that, in any point of view, this proceeding by sci. fa. must be held to have been regular, and the sale and sheriff’s deed, under that judgment, were sufficient to bar all equities of redemption in the lands embraced in the second mortgage.
In the case of the bill to foreclose the mortgage first given, there was no return indorsed upon the summons. It only contained the indorsements signed by a portion of the defendants, acknowledging service, without date, but whether the writ was ever in the hands of the sheriff, fails to appear. In the case of McDaniels v. Correll, 19 Ill. 226, it was held by this court, that a summons and return, under the statute, are expressly required, to give the court jurisdiction of the persons of non-resident defendants. Without that formality, they were held not to be properly before the court, and all its proceedings, as to them, were void. In that case, there was publication, but no summons ■ or return. In this case, there was the writ, but no return, which brings it fully within that case, which is decisive of this question. Therefore, for the want of jurisdiction of the persons of the non-resident defendants, their equity of redemption was unaffected by the decree of strict foreclosure, and still subsists, unless barred by the statute of limitations.
It is, however, urged with much earnestness, that the mortgage and the decree of strict foreclosure are color of title, which, with seven years’ payment of taxes, operates as a bar to the redemption. In proceedings in chancery, the statute may be interposed and relied upon, as in an action of law.
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Walker, J.
Was the proceeding, by scire facias, sufficient to bar the equity of redemption, in the premises embraced in the second mortgage executed by McClure to Hubbard ? It is insisted that it was not, for several reasons. First, because it is alleged that the returns to the writs did not give the court jurisdiction to .try and determine the case. The sheriff’s return to the first of these writs was, “ Josiah E. McClure not found, November 7th, 1842.” This was the return day of this writ. The return of the second was this: “ The within named Josiah E. McClure not found, March 25th, 1843.” This latter writ was tested on the 18th day of January, 1843, and was returnable to the term to be held on the first Monday of March, and it was returned during that term. There is nothing in the record which indicates when the writs came to the hands of the officer. But in its absence, the law will presume that they were delivered at the time they were issued. Neither the statute, nor the practice require the officer to indorse the date of their delivery to him, and we can perceive no necessity for such evidence. The statute has only required service, or two nihils, to authorize the court to proceed to hear and determine the case.
It is again urged, that these returns only imply, that the defendant was not found on the day named in the return. It is not usual, if it has ever been done, for the officer to certify that he has not been able, during the whole time the writ was in his hands, to find the defendant. Mr. Justice Blackstone, in his Commentaries, vol. 3, p. 283, says, if the sheriff is unable to find the defendant, he returns “ that he is not found, non est inventus,.” The language of these returns is, in substance, and almost precisely the same as that required by this authority. They clearly conform to the requirements of the law, and are strictly in conformity to the general practice, and must be held sufficient. If the return is, that service has been had, then it should distinctly appear at what time, so that it may appear whether it was as long as ten days before the return day of the writ.
It is likewise urged that the judgment is invalid, and therefore fails to bar the equity of redemption, because Richards was not made a party to the proceeding. Had this been a proceeding in equity, this would be undeniably true. But as it is a proceeding given and regulated alone by statute, and is in a court of law, the conclusion is irresistible, that it was the design of the legislature, in the absence of a requirement that it should be in the form of an equitable proceeding, that it should be governed by the practice of the courts of law, and not of equity. This court held, in the case of The State Bank v. Wilson, 4 Gilm. 57, that the statute authorizing this mode of foreclosure, has given the judgment the effect of a recovery at law, against the mortgaged premises. That it creates no new liability, but is merely a means of rendering a former lien available. And that, “ the purchaser under the judgment acquires all the right in the mortgaged premises, which the mortgagor had, at the time of the execution of the mortgage, entirely unaffected by the title or lien of purchasers or incumbrancers subsequent to the recording of the mortgage, or with notice, who in order to save themselves, must redeem as in case of an ordinary sale on execution at law.”
In all suits at law the proceedings are confined alone to the parties to the transaction. In no proceeding in that form, are subsequent purchasers or incumbrancers ever made parties, but are required to take notice of the proceeding, and failing to do so, their rights are not protected. A plaintiff after recovering a judgment is not required to give notice to persons having subsequently acquired rights, before he can proceed to sale and satisfaction. He may sell, and they, to preserve their rights, must redeem within the period limited by the statute. This then being a proceeding and judgment at law, the rights of the parties must be governed by the rules of law and not of equity. The statute having authorized a foreclosure in this mode, and not having required any person but the mortgagor and mortgagee, or, in case of their death, their executors or administra tors, to be made parties, and the statute having been complied with, it must be held sufficient.
The decree in bankruptcy was rendered in May, 1842, and the last writ of sci. fa. was sued out in January, 1843, and judgment was rendered in the month of March following. Thus it will be observed, that, by the operation of the bankrupt law, McClure’s equity, by the decree, had passed to Richards, before the judgment was rendered; in fact, before the proceeding was instituted by the scire facias. By the decree in bankruptcy, Richards was appointed assignee, and succeeded, by that act, to McClure’s interest in the land which passed to him; and how can it be said, that the District Court still retained exclusive jurisdiction over the land ? It no doubt still had jurisdiction and power over the assignee, and might affect the title transferred to him, or the title of other parties, by further proceedings, but having transferred the bankrupt’s title in the land to the assignee, its exclusive jurisdiction over the land itself, if it ever had any, was at an end.
But even if this were not so, the proceeding in bankruptcy was in a different State, and parties there having an interest in the land were not chargeable with the notice of lis pendens. And as the application of the mortgagor was for the benefit of the bankrupt law, and not for the sale of the land, or any proceeding to affect the mortgagee’s interest, no reason is perceived why a sci. fa. might not have been sued out whilst his application was pending. The legal effect of that decree, as far as it related to this land, was simply to pass the mortgagor’s equity of redemption, precisely as if it had been transferred by deed. It appears then, that, in any point of view, this proceeding by sci. fa. must be held to have been regular, and the sale and sheriff’s deed, under that judgment, were sufficient to bar all equities of redemption in the lands embraced in the second mortgage.
In the case of the bill to foreclose the mortgage first given, there was no return indorsed upon the summons. It only contained the indorsements signed by a portion of the defendants, acknowledging service, without date, but whether the writ was ever in the hands of the sheriff, fails to appear. In the case of McDaniels v. Correll, 19 Ill. 226, it was held by this court, that a summons and return, under the statute, are expressly required, to give the court jurisdiction of the persons of non-resident defendants. Without that formality, they were held not to be properly before the court, and all its proceedings, as to them, were void. In that case, there was publication, but no summons ■ or return. In this case, there was the writ, but no return, which brings it fully within that case, which is decisive of this question. Therefore, for the want of jurisdiction of the persons of the non-resident defendants, their equity of redemption was unaffected by the decree of strict foreclosure, and still subsists, unless barred by the statute of limitations.
It is, however, urged with much earnestness, that the mortgage and the decree of strict foreclosure are color of title, which, with seven years’ payment of taxes, operates as a bar to the redemption. In proceedings in chancery, the statute may be interposed and relied upon, as in an action of law. Whilst it is only in analogy to the law, yet it, in the same manner and to the same extent, follows the law in its application. Then, is a mortgage and decree of strict foreclosure color of title ? By the mortgage deed the legal title passes to the mortgagee, but in equity, the right of redemption remains in the mortgagor, even after condition broken. But at law, after condition broken, the mortgagee may bring his ejectment and recover possession. The mortgage is a deed of conveyance with a condition annexed, and purports on its face to convey the title, but the,condition authorizes the mortgagor to defeat the title thus conveyed and to reinvest it in himself, by a performance of the condition. After a failure to perform the condition, the title apparently becomes absolute in the mortgagee, and is clearly color of title.
As equity still permits a redemption notwithstanding a breach, the mortgagee is regarded as holding the title in trust for the mortgagor, to be divested when the money is paid. It is a rule, of general application, that a trustee shall not be permitted to rely upon the efflux of time, under the statute of limitations, so long as that relation exists. Until it is terminated, he is es-topped to interpose the bar. So of a tenant who acquires possession from a landlord. In each of these cases the possession will be held subordinate to, and under the title of, the mortgagee or the landlord. The possession so acquired, and whilst so continued, is held not to be hostile. So of the payment of taxes. Whilst these several relations exist, the possession and payment of taxes cannot be held to be for the benefit of the occupant, and cannot in good faith be relied upon for hostile purposes against the mortgagor or landlord.
To bring themselves within the good faith of this statute, they must first surrender the possession if it has been obtained, or, as against the mortgagor, notice must be given that payment of taxes is claimed to be in the right of the mortgagee independent of the mortgage, or the relation must be apparently terminated in some other mode. After a foreclosure, or an effort to foreclose the mortgage, by decree or deed which purports to have that effect, the presumption then arises that all acts done in reference to the property, are done under a claim of ownership, by the mortgagee, and referred to his color of title. If they are such as is required by the statute, and for the period of time designated by the statute, they would form a bar to a redemption.
It is also urged that as Bichards, Fake and Baymond, were not properly before the court, and as their right to redeem was not barred by the strict foreclosure of this mortgage, that Lee in his lifetime, and his heirs since his death, were chargeable with notice, and cannot be permitted, in good faith, to rely upon the statute, to bar the right of redemption. It is a rule of uniform application, that notice of the claim of other persons does not apply under the statute of limitations, as in case of subsequent purchasers or incumbrancers, under the registry act. In the case of Woodward v. Blanchard, 16 Ill. 433, this court recognized and acted upon . this doctrine to its full extent. In that case it was held, that an auditor’s deed, to a purchaser of land at a sale for taxes, although the law under which the sale was made was unconstitutional, and the sale consequently void, yet in the hands of the purchaser, unless chargeable with bad faith, was color of title, and might be relied upon as a bar, when the other requirements of the statuté were satisfied. The mere fact that the sale was void, was held not to be evidence of bad faith. Again, in the case of Laflin v. Herrington, 16 Ill. 301, it was held that title absolutely void in its inception, where held by a grantee of the purchaser at the void sale, unless chargeable with fraud, is claim and color of title made in good faith, within the meaning of the statute.
Whilst these decisions were under the eighth section of the conveyance act, no difference is perceived between it and the ninth section of the same act, as it regards this question. It seems to be altogether immaterial, whether the decree was sufficient or not, to bar the equity of redemption, to render it color of title. The effort was made to bar it, and the decree was entered for that purpose, and in the absence of fraud, or proof showing that it was in bad faith, we must hold that it is color of title made in good faith. If the decree was not warranted, it was no more bad faith for the mortgagee to rely upon it as color of title, than for a purchaser at an unconstitutional and void sale for taxes. It must be held that this effort to foreclose was such an act as authorized the mortgagee to act under claim in himself, and not subordinate to the title of those claiming the equity of redemption. That proceeding manifested to them and to the world, that he no longer recognized them as having any rights in the premises. That act was hostile to their rights, and his subsequent acts must be regarded in the same light.
Then was there a payment of the taxes assessed upon these premises by the person holding the color of title, for the period of limitation ? Whilst it 'is alleged in the bill and admitted in the answer that the executors of Hubbard held the lands under his will as trustees for the creditors and heirs, and must therefore have held the legal title, yet they paid the taxes in the name of Lee and for his benefit, and whatever his equities might be, be was not within the provisions of the ninth section, as he held no paper title. The payment, therefore, made by them in Lee’s name, and for his benefit, before they conveyed to him, did not concur with the color of title. That was in the executors of Hubbard, after his death, until they conveyed to Lee, and to have come within the statute, the payment should have been made in their name.
And the- record fails to show that Lee’s executors held the fee, or any other interest in the premises after his death. It however, does appear that after his death, the taxes were paid in the name of his executors. In the absence of proof, we must conclude that the lands were devised to his heirs, or those whom he regarded as having claims on his bounty, and to have rendered the payment of taxes in the name of his executors available, it should have appeared that the will vested in them some title, or at least required them to pay the taxes until the estate was settled. In the absence of such proof, the payments thus made, cannot be regarded as concurring with the color of title.
It then remains to inquire, whether the payment of taxes by Lee, concurred with the color of title vested in him, for seven successive years. Hubbard’s executors conveyed the premises to him, on the 30th of May, 1849, and the papers were delivered by Brown, the agent of Lee, to Kerfoot, the agent of Lee’s executors, in the month of February, 1855, and if Leo had only died immediately previous to that time, it would have been something less than six years. And Kerfoot testifies, that after receiving the papers, he paid the taxes for Lee’s executors. Brown testifies, that he paid, in the name of Lee and of his executors, by which we infer that until Lee’s death, he paid in his name, and afterwards in the name of the executors. So that we must conclude that Lee had died before Brown ceased to pay taxes, but the evidence fails to show what length of time. In any event it cannot be seen, that the payment of taxes concurred with, or was made in the name of the person holding the color of title for seven successive years prior to the commencement of this suit. Had it appeared that payment was continued after the death of Lee, by the persons holding the color of title inherited or devised to them by Lee, whether as trustees, or in their own right, then it would have sufficed. The proof fails to show that fact, and it must be held that the proof in this record fails to bring the lands embraced in the first mortgage, within the ninth section of the conveyance act.
The decree of the court below is affirmed, in dismissing the bill as to the undivided fourth of the E. i N. W. 36, 39 N., 13 E., and lot 8 in Egan’s subdivision of block 47, School Section Addition to Chicago, and is reversed and remanded as to the undivided half of S.W. 20, 39 N., 14 E., and undivided eighth of E. i N. E. 20, T. 39 N., R. 14 E., embraced in the mortgage of July 13th, 1836, for further proceedings not inconsistent with this opinion, and that each party pay one-half of the costs in this court, and in the court below.