91 Ill. 414 | Ill. | 1878
delivered the opinion of the Court:
The bill in this case was to foreclose a mortgage, made by Abram Cornwell, since deceased, his wife joining with him in the execution, on premises described as follows: “ A certain tract or parcel of land containing about seventy acres, being a part of the E. \ S. E. -]• sec. 17, T. 21 N., B. 2 W., or however else the same may be boundéd or described,” to complainant to secure the promissory note of Abram Cornwell, bearing date January 20, 1866, payable one year after date, to the order of complainant, with interest at the rate of ten per cent per annum.
Although the bill asks that the mortgage may be “ reformed and corrected ” so as to show a more accurate and definite description of the premises embraced in the mortgage, it is conceded it can not be reformed as against the wife of the mortgagor. We do not understand it was the purpose, in introducing testimony, to have the mortgage reformed, but it was simply to aid in locating the laud by the description contained in the mortgage; and that is allowable, under the decision in Colcord v. Alexander, 67 Ill. 584. That is not, in fact, reforming the mortgage as to the wife of the mortgagor or any one else.
It Avas attempted to prove that the mortgagor owned the whole of the east half south-east quarter described, and that, prior to the execution of the mortgage, he had conveyed a part of the tract, Avhich, deducted, Avould leave “about 70 acres.” But the testimony offered to prove that fact we think Avas not the best evidence accessible for that purpose. The only evidence on that question was the oral testimony of Hahn and the abstract of title made by him. The Avitness, as we understand the record, was- permitted to state what the record showed. That was not allowable under any rule of evidence Avith Avhich Ave are familiar. The deeds, or the record of the same if the originals could not be obtained, Avere the better evidence and ought to have been produced. The description gÍAren by the witness Hahn, of the tract which it is said the mortgagor had previously conveyed, does not bound any tract of land. The deed itself, or the record, would show what land was, in fact, conveyed.
On account of the admission of improper evidence over the objection of defendants, the decree will be reversed and the cause remanded.
Decree reversed.