Kaysing v. Hughes

64 Ill. 123

• Court: Illinois Supreme Court
• Decided: June 15, 1872
• Status: Published

Opinion

Mr. Justice Thornton

delivered the opinion of the Court:

The consideration first mentioned in the mortgage is larger than the debt afterwards accurately described, and to secure the payment of which the mortgage'was given.

Is the mortgage therefore fraudulent per se and void?

The consideration stated in the commencement of the mortgage, may be more or less than the sum secured, without affecting its validity. The amount which the ¿parties intended to secure must be ascertained from the condition in the deed. Even if this were for a sum larger than was actually due, the-mortgage would not be absolutely void. The fact would still be subject to explanation. Wooley v. Fry, 30 Ill. 158.

Creditors could not be imposed upon or deceived by the recitals in this mortgage. The mortgagor only incumbered his property to the amount of the note, particularly described in the condition in the mortgage, and the mortgagee had a lien to the extent of that indebtedness. The sum thus secured was easily ascertained by subsequent purchasers and creditors. The chattel mortgage and note disclosed the real nature of the transaction, and no intervening rights could be injuriously affected, and no positive fraud imputed.

It was error to reject the mortgage as evidence.

The judgment is reversed and the cause remanded.

Judgment reversed.