115 Ill. 570 | Ill. | 1886
delivered the opinion of the Court:
There were two pleas filed in this case: First, the general issue; secondly, that defendant was not in possession of the premises at the time of suit brought. This latter plea was verified by affidavit. We are of opinion that the evidence warranted the finding against appellant upon this latter plea, "and that the finding as to that issue can not be disturbed.
On the trial the court admitted in evidence, over the objection of appellant, the original records of the foreclosure proceedings in the same court, under which appellee claimed title. The ground of objection stated at the time was, that the record could only be proved by copy thereof duly certified, and that the record “was insufficient, irrelevant and incompetent, and did not prove anything. ” This cause was tried in the Will county circuit court, and the record read in evidence was the record of the same court. It is not necessary that a certified copy of the record should be made when it is sought to use the record in the same court where it is entered. Courts judicially take notice of their own records. The record may be properly used instead of a copy when the case in which it is. offered is being tried in the same court which made the record. 1 Greenleaf on Evidence, sec. 502; Gray v. Davis, 27 Conn. 447.
It is, however, insisted, that the record was inadmissible for the want of a plácito,; but this objection is specifically pointed out in this court for the first time, and it comes too late. The objection for incompetency and irrelevancy amount to a general objection, only. It is an objection which, if pointed out, might have been obviated in the court below, and such objections must be made in the trial court, or they will be considered waived. Hyde v. Heath, 75 Ill. 381.
The. appellant set up in the court below, as a defence to the action, outstanding title in his wife. The title thus set up was that which she derived through the conveyance of himself and wife to Miner, and by Miner to her, executed after the execution and delivery of the mortgage to Wilcox, and after foreclosure proceedings thereon had been instituted. All that appellant had then to convey was a mere equity of redemption, and that was all she or her grantor took by such conveyance, and which can not prevail against the legal title in an action at law. Aholtz v. Zellar, 88 Ill. 24; Wales v. Bogue, 31 id. 464; Kruse v. Scripps, 11 id. 98; Fleming v. Carter, 70 id. 286; Fischer v. Eslaman, 68 id. 78.
It is a familiar principle, that after condition broken, ejectment may be maintained by the mortgagee against the mortgagor, or those to whom he may have assigned the equity of redemption. Appellant could invest his grantee with no greater title than he possessed, or put him in better condition than he occupied himself. The purchaser of the mortgaged premises from the mortgagor stands in the shoes of the mortgagor, and is charged with notice of the mortgage and its legal effect. He succeeds to the rights of the mortgagor, but is in no better condition. The failure to make him a party to a proceeding to foreclose the mortgage does not affect the validity of the decree, but his right of redemption is unaffected by it. Kelgour v. Wood, 64 Ill. 345; Kruse v. Scripps, supra; Jackson v. Warren, 32 id. 340.
It is insisted that the possession of the premises at the time this suit was brought, was the possession of the wife of appellant, and not his, and therefore the judgment is erroneous. We do not think so. Appellant was in possession, as mortgagor, after condition broken, either by himself or tenant, at the time of the conveyance by himself and wife to Miner. The conveyance to Miner was of a mere equity,—not the legal or paramount title which in contemplation of law draws the possession to it. Before the conveyance to Miner, appellant was in possession by his tenant. Upon the tenant leaving the premises, appellant himself went into the actual occupancy, and continued to occupy, with his family, to the trial. When this right of the wife and her grantor accrued, the right to the possession was in the mortgagee,—not in her or his grantor or lessor. Her lessor never was in possession, and hence, having neither the actual nor constructive possession, could not invest her with it. A mortgagor, or his grantee, can not make a lease of mortgaged premises which will give greater right than he possesses, and that will interfere with the right of the mortgagee to enter for condition broken. Gartside v. Outley, 58 Ill. 211.
We think, as before stated, that the evidence sufficiently warranted the finding against appellant on his second plea.
Observing no error in the record, the judgment will be affirmed.
Judgment affirmed.
