delivered the opinion of the court.
This is an appeal from an order of the Superior Court of Cook County dismissing plaintiff’s complaint to foreclose a first mortgage upon certain real estate located in Cook County. The order was entered on the motion of three of the defendants, owners of an equitable title to the said real estate. The motion was brought under section 48 of the Civil Practice Act [Ill. Rev. Stats. 1957, ch. 110, § 48].
In order to understand the issues it is necessary to set forth the history of the case preceding the present litigation.
The premises in question, at 3019 Ruby street, Franklin Park, Illinois, were on December 1, 1926 owned by Alfred Frost and Anna Frost, his wife, in joint tenancy. On that date they executed and delivered the note and mortgage trust deed herein sought to be foreclosed, to secure the payment of a $2,000 indebtedness. The trust deed was recorded December 3, 1926 and the mortgage paper was purchased sometime in December, 1926 by J. William Everhart. Alfred Frost died in February, 1928. The mortgage indebtedness fell due on December 1, 1929 and was extended three additional years to December 1, 1932 by an unrecorded extension agreement. Interest on the indebtedness was paid by the Frosts until December 1, 1932. No subsequent payments were made either on the principal or interest. The plaintiff herein, Leah Palkey, together with her husband, was in possession of the premises as tenants. On July 16, 1935 Anna Frost entered the Danish Old People’s Home and executed with the Home a written agreement to convey all her property wherever situated to the said Home in consideration of her keep during the remainder of her life. She died on April 6, 1938. No deed or conveyance of any kind, outside of the said agreement, was made by Anna Frost.
On June 25, 1938 the plaintiff Leah Palkey and her hnshand allegedly purchased the said mortgage indebtedness from J. William Everhart under a written agreement, at which time the Palkeys attorned to Everhart, and held the premises on his hehalf until the written contract was satisfied on December 26, 1940, when Everhart delivered the mortgage paper to the Palkeys and assigned to them all his interest. The taxes and assessments on the said premises were unpaid from 1929 to 1946. In 1952 a tax foreclosure suit was filed, which proceeded regularly to foreclosure decree and order of sale, which occurred on December 30, 1952. Leah Palkey had the property purchased by her nominee Ray Pranzen. On November 30, 1954, one of the defendants herein, John F. Rodgers, had a quitclaim deed to the said premises issued by the Danish Old People’s Home to his nominees, the defendants Charlotte Donichy and Patricia Theriault. On December 20, 1954 Donichy and Theriault redeemed from the said tax foreclosure sale to Franzen. Franzen and Palkey filed their petitions to set aside the said redemption claiming that Palkey owned the premises under an unrecorded, lost deed from Anna Frost, and in the alternative by adverse possession. The Circuit Court set aside the said redemption on November 28, 1956 and dismissed the Palkey petition and directed that the county clerk issue a deed to Franzen. Donichy and Theriault appealed from said order to the Supreme Court (Franzen v. Donichy,
In 1955 Donichy and Theriault commenced a forcible entry and detainer action against Palkey. After the decree was entered in the Franzen v. Donichy case above referred to, on February 6, 1957 in a summary judgment proceeding the Circuit Court entered judgment for possession in favor of Donichy and Theriault against Palkey.
On February 14, 1957 Palkey filed the instant suit in the Superior Court of Cook County to foreclose the mortgage. The complaint, among other things, asked for a restraining order against Donichy and Theriault. On March 4,1957 the trial court denied the motion for a restraining order. The defendants Donichy, Theriault and Rodgers filed a motion under section 48 of the Practice Act to dismiss the complaint on March 18, 1957, and as grounds set up the statute of limitations and that the cause of action “is barred by prior judgments obtained by defendants against plaintiff in the Circuit Court of Cook County,” setting out the tax foreclosure suit, Franzen v. Donichy, and the forcible detainer suit, Donichy and Theriault v. Palkey. With the motion an affidavit in support was filed. Leave was given to the plaintiff to file a counteraffidavit, which was filed May 20, 1957, and on May 28, 1957 the court entered an order dismissing the foreclosure suit with prejudice, from which order this appeal is taken.
The defendants herein rely on the defense of the statute of limitations. Section 11 of the Limitations Act (Ill. Rev. Stat. 1957, chap. 83, par. 11) by its terms bars action or sale to foreclose any mortgage or trust deed in the nature of a mortgage after ten years from the time 'when the right of action or right to make such sale accrues. Section lib terminates the lien of a trust deed and mortgage against real estate titles after the expiration of twenty years from the time the last payment became due upon its face unless the mortgagee preserved his lien within a specific period by filing for record an extension agreement. The effect of section lib is that as against persons other than the original parties to the mortgage an unrecorded extension agreement has no validity.
In the case before us the original agreement was due on December 1, 1929 and was extended by an unrecorded extension agreement to December 1, 1932, and interest was paid by the original mortgagors until December 1, 1932. As between the original parties to the mortgage that extension was valid, and section 11 would bar any action being brought after December 1, 1942. Under section lib the extension was not valid insofar as it affected the defendants herein. The mortgage lien, by virtue of section lib, as between the parties to this suit, would expire on December 1, 1949.
It is also the law that the statute of limitations does not run against a mortgagee in possession. Miller v. Frederick’s Brewing Co.,
¥e will first consider the effect of the finding and judgment entered in the forcible detainer action. Under the law of Illinois, after condition broken a mortgagee is the owner of a legal estate and as snch entitled as of right to the possession of the mortgaged premises, and if he takes possession can defend his right thereto against the mortgagor, his grantees or anyone claiming under him by any right. Tuttle v. Harris,
“It is apparent from appellee’s plea that appellant in the forcible detainer action sought to prove his rights as such vendee, but that issue was found against him. Even though he had not made that defense he nevertheless could have done so, and the finding and judgment in that case was res judicata of the rights of appellant to exercise the option to purchase the premises.”
In the instant case the plaintiff had, as defendant in the forcible detainer suit, put in issue therein the fact that she was a mortgagee in possession. As in Bakaitis v. Pink, supra, the issue was not raised to determine title but merely to determine whether she was in possession without right. If the court found that she was a mortgagee in possession it would have been a bar to the forcible detainer action. In order for the court to enter a judgment for the plaintiffs in that suit (certain defendants here) the court must necessarily have determined the issue therein raised that the defendant (the plaintiff here) was not a mortgagee in possession. It affirmatively appears that that matter was actually raised in the court. The fact that the court makes no reference in its finding and judgment to its determination of that fact is immaterial. In determining whether an issue has been raised and considered in a prior proceeding reference may be had to “pleadings, testimony, jury instructions, findings, verdicts and any other pertinent sources of information sensibly helpful to the inquiry.” “Res Judicata Beexamined,” Cleary, 57 Yale Law Journal, 339, 342. Harmon v. Auditor of Public Accounts,
“When some specific fact or question has been actually and directly in issue and has been adjudicated and determined by a court of competent jurisdiction in a former suit, and the same fact or question is again put in issue in a subsequent suit between parties or their privities who were parties in the former suit, its determination in the former suit, if properly presented and relied upon, is conclusive upon the parties and persons in privity with them in the latter suit, without regard to whether or not the cause of action is the same in both suits, and it cannot be again litigated in the subsequent suit upon the same or a different cause of action whatever may have been the nature of the first action or of the second action in which the estoppel is set up: Hoffman v. Hoffman (1927),246 Ill. App. 60 . It is of first importance both in the observance of private rights and of the public good that a question once adjudicated by a court of competent jurisdiction shall be considered as finally settled and conclusive on the parties: Winkelman v. Winkelman (1924),310 Ill. 568 . Where the cause of action in the first suit is not the same as the cause of action in the second suit the court’s determination in the first suit on all questions actually decided is final and estops the parties and their privities from re-litigating those questions in the second suit, — such is normally denominated as estoppel by verdict or judgment, is but another branch of the doctrine of res judicata, and rests on the same principles as res judicata: City of Elmhurst v. Kegerreis (1945),392 Ill. 195 .”
In Cohen v. Schlossberg,
“As the causes of action are not the same, the only basis upon which a bar by prior adjudication could be sustained would be as collateral estoppel by judgment. In the application of collateral estoppel, even though the causes of action are not the same, a relevant issue, determined in a prior suit between the same parties or their privies, is a bar to relitigation of that issue.”
In Baker v. Brown,
“The general rule is, a judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment in any collateral action or proceeding, except for fraud in its procurement, and even if the judgment is voidable and is so illegal or defective that it would be set aside or annulled on a proper direct application, it is not subject to collateral impeachment so long as it stands unreversed and in force. . . . [Citing cases.] This rule is so well settled it is not open to question.”
No appeal was taken from the finding and judgment of the Circuit Court in the forcible detainer suit. That finding and judgment are conclusive on the parties in the instant case, and plaintiff is thereby estopped to assert in the instant case that she is a mortgagee in possession.
In Franzen v. Donichy, supra, the court in its opinion filed in 1956 made the following statement:
“The evidence discloses that she [Palkey] was in possession for over 20 years and had made some repairs, but no taxes were paid and there is little to indicate her possession was adverse or under claim of title. It appears instead that she entered into occupancy as a tenant, and there is no satisfactory evidence to show a subsequent change in the character of the possession.”
At the time of the filing of the tax foreclosure suit in 1952 the document of July 25, 1938, upon which the plaintiff here relies and under which she alleges in her complaint that she purchased the mortgage indebtedness, was in existence, and was satisfied on December 26, 1940, at which time the plaintiff here contends that she became a mortgagee in possession. She made no such allegation in that case but relied solely upon a lost deed and adverse possession. While this finding and decision may not fall under the rules with reference to a collateral estoppel by judgment, it nevertheless strengthens the position of the defendants here. If, as we have found, the plaintiff here is es-topped by the finding and judgment in the forcible detainer case to assert that she is a mortgagee in possession, the statute of limitations would bar any right which she may claim in the instant suit.
The judgment of the Superior Court is affirmed.
Affirmed.