Pratt v. Pratt

• Court: United States Appellate Court of Illinois
• Writing for the Court: PER CURIAM.
• Citation: 3 Bradw. 582,3 Ill.App. 582
• Parties: MARY L. PRATTv.JAMES PRATT ET AL.
• Decision Date: 31 December 1878

3 Ill.App. 582
3 Bradw. 582

MARY L. PRATT
v.
JAMES PRATT ET AL.

Appellate Court of Illinois, Second District.

December Term, 1878.

[3 Ill.App. 582]

APPEAL from the Circuit Court of McHenry county; the Hon. C. W. UPTON, Judge, presiding. Opinion filed May 2, 1879.

Mr. H. B. HURD and Mr. FRANK BAKER, for appellant; that a complainant cannot state one case in his bill and make out a different case in proof, cited Ohling v. Luitgens, 32 Ill. 23; DeLeuw v. Neely, 71 Ill. 473; Downing v. Tuck, 76 Ill. 71; Morris v. Tillson, 81 Ill. 607; Berger v. Peterson, 78 Ill. 633; Rowan v. Bowles, 21 Ill. 17; McKay v. Bissett, 5 Gilm. 499.

Testimony of one of the defendants as to admissions made by a deceased party, should not have been admitted: Rev. Stat. 1874, 488; Connelly v. Dunn, 73 Ill. 218; Brown v. Hurd, 41 Ill. 122.

Where a party acquires title by purchase at sheriff's sale, with a parol agreement to hold the title as security for a loan of money paid to relieve the land from the judgment lien, and to re-convey when the money is refunded, the deed will be treated as a mortgage: Reigard v. McNeil, 38 Ill. 400;

[3 Ill.App. 583]

Smith v. Doyle, 46 Ill. 451; Kloch v. Walter v. 70 Ill. 416; Smith v. Knoebel, 82 Ill. 392; Strong v. Shea, 83 Ill. 575; Smith v. Cremer, 71 Ill. 185.

A subsequent mortgagee is entitled to precedence of advances made by a prior mortgagee who has notice of the second mortgage: Frye v. Bank of Ill. 11 Ill. 367.

Record of subsequent mortgage is notice to prior mortgagee: Spader v. Lawler, 17 Ohio, 371; Bank of Montgomery, appeal, 36 Pa. 170; Ladue v. D. & M. R. R. Co. 13 Mich. 380.

Lampson having conveyed the land with full covenants of warranty, was interested to defeat the Pratt mortgage, and his testimony should not have been received. His discharge in bankruptcy did not remove the objection: Rev. Stat. 1874, 488; Connully v. Dunn, 73 Ill. 218; Boverton v. Byrne, Adm'r, 72 Ill. 466; Whitmer v. Rucker, 71 Ill. 410.

A mortgagor is not liable for rents and profits while in possession of the mortgaged premises: Renard v. Brown, 1 West. Jur. 486; Miss. V. & W. R'y Co. v. U. S. Ex. Co. 81 Ill. 534; O'Brien v. Fry, 82 Ill. 274; Stephens v. Ill. M. & F. Ins. Co. 43 Ill. 331.

In equity, a party to avail himself of the Statute of Limitations must plead it, so that the other party may have opportunity to account for the delay; Trustees v. Wright, 12 Ill. 432; Zeigler v. Hughes, 55 Ill. 289.

Mr. A. B. COON and Mr. B. N. SMITH, for appellees, Worthington and Lyon; that being bona fide purchasers of parts of the mortgaged premises, the mortgage is void as to them, cited Miller v. Marckle, 21 Ill. 152; Reed v. Noxon, 48 Ill. 323.

Mr. E. R. SMITH and Mr. E. F. ALLEN, for appellee Pratt; that fraud may be shown by circumstances, cited Carter v. Gunnels, 67 Ill. 270.

The notes and deed having been given in 1858, they were barred by the Statute of Limitations after sixteen years: Pollock v. Maison, 41 Ill. 516; Harris v. Mills, 28 Ill. 44.

A person purchasing land pendente lite, does so at his peril, and is as much bound by the results of the litigation as if he

[3 Ill.App. 584]

had been a party to it from the outset: Inloe's Lessor v. Henry, 11 Md. 524; Salisbury v. Benton, 7 Lans. 353...