189 Ill. 425 | Ill. | 1901
delivered the opinion of the court:
Keeping in mind the universal rule that in actions of ejectment the plaintiff must recover upon the strength of his own title and not upon the weakness of the defendant’s, what have the plaintiffs below shown to be the true title? They seem, according to one part of the argument of their counsel, to rely upon the deed from Ferguson to their grantor, Greenbank, as an absolute conveyance of the legal title, and that, even treated as a mortgage, the right of redemption having expired by the lapse of time, the title had become absolute in Green-bank. Whatever force there might have been in the last branch of this proposition (that is, that even if the deed should be treated as a mortgage the title had become absolute by lapse of time,) if it had been urged in the proceeding in chancery in the United States court, it can have no force whatever in this action. In that proceeding, the parties in interest having been before the court and the court having decreed that the deed was, at most, but a mortgage and dismissed the bill without prejudice as to complainant’s rights as mortgagee only, and complainant having abided by that decree, the same (being still in full force and effect) is res judicata as to his rights, except such as he may have as mortgagee. In fact, it is admitted by counsel in another part of his argument that the decree of the court of chancery is res judicata between the parties as to the character of the conveyance to Greenbank, and the contention is that Greenbank, under that deed, became the absolute owner of the property by the expiration of the time of redemption. In other words, as we understand the argument of counsel, he admits that the decree is res judicata as to the character of the conveyance to Greenbank,—that is, that it was but a mortgage and not an absolute deed, and that the rights of Greenbank were those of a mortgagee only,— and yet, in direct contradiction of that admission, contends that, notwithstanding that decree, the conveyance, for the purposes of this trial, has all-the force and effect of an absolute deed. These positions are wholly irreconcilable, and the last is clearly untenable. The decree settled the character of the conveyance and the rights of the parties under it, refusing to confirm the deed as an absolute conveyance but leaving to Greenbank such rights as he might have as mortgagee.
What were the rights of Greenbank, as mortgagee, when he attempted to convey the fee simple title to the plaintiffs below, construing the decree as recognizing his rights as a mortgagee? The debt and mortgage had long since been barred by the Statute of Limitations, and the mortgage was therefore no longer a muniment of title in him. (Rev. Stat. chap. 83, sec. 11; Pollock v. Maison, 41 Ill. 516; McMillan v. McCormick, 117 id. 79.) He might have foreclosed the mortgage, or, after the breach, maintained ejectment as mortgagee, but it will scarcely be contended that he could, upon a declaration like the one filed in this case, claiming title in fee simple, have recovered, and no more can his grantees do so.
The case of Green v. Capps, 142 Ill. 286, relied upon by counsel as sustaining his position, has no application whatever to the case at bar, and the argument by which it is attempted to make it apply wholly ignores the force and effect of 'the decree in chancery.
In the view of the case we have taken in the foregoing opinion, other grounds of reversal insisted upon by the appellant become unimportant.
We entertain no doubt that the plaintiffs below wholly failed to establish the legal title to the premises in question in themselves, and the judgment of the circuit court is for that reason erroneous. It will accordingly be reversed.
Judgment reversed.