Rockwell v. Servant
| Decision Date | 31 January 1872 |
| Citation | 63 Ill. 424,1872 WL 8204 |
| Parties | ROBERT ROCKWELL et al.v.ANN E. SERVANT et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Randolph county; the Hon. SILAS L. BRYAN, Judge, presiding.
This was an action of ejectment, by the appellees against appellants. The facts bearing upon the question discussed are stated in the opinion of the court.
Mr. THOMAS G. ALLEN, and Mr. LEWIS P. BUTLER, for the appellants.
Mr. WM. H. UNDERWOOD, for the appellees.
It was agreed on the trial below that Justus T. Rockwell died intestate on the 20th day of August, 1844, in possession of the premises in controversy, and that he was the owner of the same subject to a mortgage executed by him to Elisha Seymour. It was given to secure the payment of a note for $98.30, dated on the 10th day of September, 1843, due on the 10th day of September, 1845, and drew ten per cent interest. The mortgage was duly recorded. Seth Allen was appointed administrator of Rockwell's estate on the 2d day of September, 1845, and was served with a writ of scire facias, which was sued out by Seymour to foreclose the mortgage. A judgment for the sale of the premises was rendered on the 23d day of September, 1845.
A special execution was issued and placed in the hands of the sheriff, who, on the 19th day of December, 1845, sold the land to Elisha Seymour. The premises were not redeemed, and the sheriff, on the 6th day of August, 1847, conveyed the same to the purchaser at the sale. Appellees introduced deeds showing a chain of title from Seymour to Ann E. Servant.
Appellants relied upon the statute of limitations by possession by themselves and those from whom they derive title for more than twenty years, before this suit was brought.
It appears the widow and heirs of Rockwell have remained in possession by themselves or tenants to the time of the trial in the court below.
There was some contrariety in the evidence as to whether or not Ford, who had married the widow of Rockwell, had not recognized Servant as his landlord a portion of the time he resided on and cultivated the premises. It is urged that, if that was true, Ford had no right to recognize the title of Servant, so as to change his possession from that of the widow and heirs to that of Servant. We will not stop to inquire whether the evidence establishes that Ford was the tenant of Servant, nor will we discuss the effect of that question in determining the case, as we think it turns upon other grounds.
As long as the relation of mortgagor and mortgagee existed between Seymour and Rockwell in his lifetime, and his heirs after his death, the statute could not run to bar the action. During the continuance of that relation, neither party in possession can interpose the statute of limitations as a defense against the other. It, then, can only commence to run after that relation has been terminated in some one of the modes known to the law. In this case the suit was commenced by service on 14th day of November, 1866, something more than twenty-one years after the judgment on the scire facias was rendered, and almost twenty-one years after the land was sold on the execution. The time within which the land could have been redeemed, and when Seymour was first entitled to his deed, was on the 19th day of March, 1847. Thus it will be seen that, from the time Seymour could have had his deed, until this suit was brought, was nineteen years and almost eight months. And from the date of the expiration of the year allowed for a redemption by the heirs until the suit was commenced, lacks something more than a month of being twenty years.
Did the mere recovery of the judgment on the scire facias extinguish the relation of mortgagor and mortgagee? We think not. Whilst it may have made some changes in their respective rights, it must be conceded that the most essential and important continued. The money was still due the mortgagee, and he still retained unimpaired his lien on the premises, not only subject, but ordered, to be sold for its payment. Neither the note nor mortgage was satisfied or discharged, but both remained in full force. On the other hand, the representative and heirs of Rockwell had the undisputed right to redeem after the judgment was rendered, and that right continued for one year after the sale was made. The heirs in possession were not liable for use and occupation, or to account for rents and profits, until Seymour was entitled to his deed. And had the latter been and remained in possession after the rendition of the judgment, he would have been bound to...
To continue reading
Request your trial
-
Bradley v. Lightcap
...other person. The certificate of purchase conveyed no title to the complainant. Johnson v. Baker, 38 Ill. 98, 87 Am. Dec. 293;Rockwell v. Servant, 63 Ill. 424;Huftalin v. Misner, 70 Ill. 55; Hays v. Cassell, Id. 669. In Whiting v. Butler, 29 Mich. 122, the four justices were divided in opin......
-
State ex rel. Forest Lake State Bank v. Herman
... ... 591; ... Vandevender v. Moore, 146 Ind. 44, 44 N.E. 3; ... Bennett v. Matson, 41 Ill. 332; O'Brian v ... Fry, 82 Ill. 274; Rockwell v. Servant, 63 Ill ... 424; Vaughn v. Ely, 4 Barb. 159; Evertson v ... Sawyer, 2 Wend. 507; Aldrich v. Sharp, 4 Ill ... 261; Kihlholz ... ...
-
In re Duffy
...has precisely the same estate that he had prior to the decree of foreclosure. Stephens v. Illinois Mutual Ins. Co., 43 Ill. 327; Rockwell v. Servant, 63 Ill. 424; Lightcap v. Bradley, 186 Ill. 510, 58 N. E. 221; Bradley v. Lightcap, 202 Ill. 154, 67 N. E. 45." And in the comparatively recen......
-
Lightcap v. Bradley
...a mortgage has no legal title, or right to be invested with a legal title, until the time allowed for redemption has expired. Rockwell v. Servant, 63 Ill. 424. The certificate of purchase confers on the holder no title in the land. Huftalin v. Misner, 70 Ill. 55. In Hays v. Cassell, Id. 669......