33 Ill. 181 | Ill. | 1864
delivered the opinion of the Court:
In this case complainant exhibited in the court below his bill to foreclose a mortgage, executed by James A. Waugh and Sarah J. Waugh to him. It alleges that the mortgage.was executed to secure the payment of money advanced by complainant for the purpose of improving the mortgaged premises.' That at the time the mortgage was executed the mortgagor liad no title to the premises, but it was expected the deed would be made to Sarah A. Waugh alone; but on the contrary, the property was conveyed to Sarah A. Waugh and her four children, upon the terms that the children owned jointly one-half of the property, and Sarah A. the other half. That complainant paid the entire consideration for the premises, which was, that it should be improved by the erection of a house thereon, which was built with complainant’s money, and the conveyance was made after the building was erected. That the grantees paid nothing. He claims that the property should be sold for the satisfaction of the mortgage.
The adult defendants answer, and insist by way of plea, that they only have a life estate in the premises, and had no other or greater interest. They afterwards filed a cross-bill in which they allege that they are very poor, and their children in need of the necessaries and comforts of life, and their interests in the lot ought to be sold for their support, to say nothing of their education; and that they have no personal property; and pray a sale of their interest in the premises for their support. Complainant answered, admitting the allegations of the cross-bill. The guardian acl litem for the minor defendants answered, that he was uninformed of the truth of the allegations of the bill, and required strict proof. On the hearing, the court decreed a foreclosure and sale of the property, also that the conveyance to Sarah A. Waugh and her children was in fraud of complainant’s rights, and that the minor defendants take nothing by the conveyance, as against complainant. That the money arising from the sale' should be applied to the payment of the mortgage debt, and if any surplus, that it be paid to Sarah A. Waugh for her benefit and that of her children.
There is no evidence in this record to establish the finding of the court that this deed was in fraud of the rights of the mortgagee. Nor does the bill allege that it was in fraud of his rights. It does allege that when he advanced the money and took the mortgage, it was with the expectation that the property would be conveyed to the mortgagors; and that it was done in the mode described, contrary to his expectations. He does not allege such was the agreement, or that it was so understood. It has been so frequently held by this court that the evidence upon which a decree is based must be in some manner preserved in the record, that it is unnecessary to refer to cases. This is especially true in reference to decrees against minors. Where minors are defendants to a bill, a decree can only be rendered against them on full proof. Nor can their natural or legal guardians by consent waive this requirement. This decree operates to deprive them of their property, and yet no evidence is found in the record, even if the allegations of the bill were sufficient, to authorize such a decree. For these reasons the decree of the court below is reversed and the cause remanded, with leave to amend the bill.
Decree reversed.
