Harris v. Mills

Citation28 Ill. 44,1862 WL 3254,18 Peck 44,81 Am.Dec. 259
PartiesJOHN H. HARRIS, Appellant,v.EDWIN MILLS et al., Appellees.
Decision Date30 April 1862
CourtSupreme Court of Illinois

28 Ill. 44
1862 WL 3254 (Ill.)
81 Am.Dec. 259
18 Peck (IL) 44

JOHN H. HARRIS, Appellant,
v.
EDWIN MILLS et al., Appellees.

Supreme Court of Illinois.

April Term, 1862.


APPEAL FROM MARSHALL.

Where the note for the security of which a mortgage was given is barred by the statute of limitations, the right to foreclose is also barred; unless the mortgage contains a covenant for the payment of the money when it might be, that the mortgage would only be barred by the time fixed for the limitation in such cases.

As a general rule, courts of equity follow the law, in allowing limitations; a bar of the statute at law, is a bar in equity; and the admissions necessary to remove the bar at law will do so in equity.

When the statutory period necessary to bar a recovery at law has passed, a foreclosure in equity will be barred.

THE facts of this case are stated in the opinion of the court by Mr. Justice WALKER; the same case was before the court at a prior time, and will be found reported in volume 25 of these Reports, at page 165.

The decree appealed from, was rendered by HOLLISTER, Judge, at the October term, 1861, of the Marshall Circuit Court.

W. H. HOMES, and J. M. SCOTT, for Appellant.H. M. WEAD, and E. M. POWELL, for Appellees.

WALKER, J.

This bill was exhibited to foreclose a mortgage, given to secure a note alleged to have been lost. The

[28 Ill. 45]

mortgage bears date the 12th of May, 1837, and recites a note for seven hundred dollars. The note is alleged to have been given on the 9th of April, 1836, by Edwin Mills to appellant, due on the 9th day of September, 1838. The mortgage was not recorded until the 8th day of November, 1855, and appears never to have been acknowledged. It also appears that Edwin Mills, on the 13th day of January, 1839, executed a mortgage on the same land, to secure two thousand dollars, to Harlow Mills, for indebtedness due to him. This latter mortgage was acknowledged and recorded. Edwin Mills, on the 17th day of February, 1842, conveyed the mortgaged premises to Harlow Mills, for the expressed consideration of two thousand dollars. This deed was recorded on the 4th of August, 1842, in the proper office.

The bill charges, that this deed and mortgage, from Edwin to Harlow Mills, are without consideration, and are fraudulent and void. It is also charged, that they were taken by Harlow, with full notice of appellant's prior mortgage. The answer alleges, that a consideration was given, and denies all notice of the prior mortgage. The answer...

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29 cases
  • Bradley v. Lightcap
    • United States
    • Illinois Supreme Court
    • April 24, 1903
    ... ... Pollock v. Maison, 41 Ill. 516;Harris v. Mills, 28 Ill. 44, 81 Am. Dec. 259;Gibson v. Rees, 50 Ill. 383;Barrett v. Hinckley, 124 Ill. 32, 14 N. E. 863,7 Am. St. Rep. 331;Lightcap v ... ...
  • Balch v. Arnold
    • United States
    • Wyoming Supreme Court
    • December 19, 1899
    ... ... W., 28; Cook ... v. Prendle, 63 N. W., 188; Brown v. Rockhold, ... 46 Ia. 282; Kerudt v. Porterfield (Ia.) 9 N. W., ... 322; Harris v. Mills, 28 Ill. 44; McMillan v ... McCormick, 117 Ill. 79; Medley v. Elliott, 62 Ill. 533 ... CORN, ... JUSTICE. POTTER, C. J., ... ...
  • Gordon v. Johnson
    • United States
    • Illinois Supreme Court
    • June 21, 1900
    ... ... 32]law, and the matter is litigated in chancery, the latter tribunal will follow the analogies of the law. Harris v. Mills, 28 Ill. 44;Castner v. Walrod, 83 Ill. 171;Cartwright v. McGown, 121 Ill. 388, 12 N. E. 737. The cross bill here was filed within less than ... ...
  • Lydia Bradley v. Lightcap
    • United States
    • U.S. Supreme Court
    • May 31, 1904
    ... ... Pollock v. Maison , 41 Ill. 516; Harris v. Mills , 28 Ill. 44, 81 Am. Dec. 259; Gibson v. Rees , 50 Ill. 383; Barrett v. Hinckley , 124 Ill. 32, 7 Am. St. Rep. 331, 14 N. E. 863; ... ...
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