Hall v. Lance

25 Ill. 277

• Court: Illinois Supreme Court
• Decided: January 15, 1861
• Status: Published

Opinion

Caton, C. J.

A mortgage, even after condition broken, is not an absolute outstanding title of which a stranger can take advantage, and defeat a recovery in ejectment by the mortgagor or one claiming under him. It is available for the mortgagee or his tenant, but not for the tenant of the mortgagor. It may be that the defendant might have shown that he had attorned to the mortgagee, of the condition broken, and thus defended his possession under the mortgage; but of this the record affords no proof. The defense then must rest entirely on the judgment of foreclosure.

Whether that judgment would constitute a defense must depend entirely on the fact whether the record of the mortgage on which the judgment was rendered, was older than the judgment under which the plaintiff claimed title. This the record fails to disclose. There is nothing to show that the scire facias was brought on the record of the mortgage produced on trial. For aught that appeared, the foreclosure may have been of a junior mortgage, subsequent to the judgment under which the plaintiff claimed. The judgment, then, of foreclosure on the scire facias was not sufficient to constitute a defense to the plaintiff’s title.

The judgment of the court below must be reversed, and the cause remanded.

Judgment reversed.