23 Ill. 480 | Ill. | 1860
The demurrer to the defendant’s plea presents the question whether the facts there stated can be relied upon to bar a recovery by scire facias to foreclose a mortgage. This court, in the case of Hall v. Byrne, 1 Scam. 140, held that in such a proceeding,1 a want of consideration, a failure of the entire consideration, or a failure of consideration in part, for which the notes and mortgage were executed, could not be interposed as a bar in this proceeding. And the court again, in the case of Woodburry v. Manlove, 14 Ill. R. 213, adhered to the doctrine of the former case, and likewise held that the defendant could not interpose a set-off as a defense. These decisions are based upon the grounds that this is a proceeding in rem., upon a debt of record, and that the statute, authorizing defenses of this character, only relates to bonds, bills, notes and instruments óf writing for the payment of money or property, and which are made assignable under the statute. This being a proceeding in rem., for the sale of the mortgaged property, after the mortgage has been duly acknowledged and recorded, and the last payment has fallen due, no defense can be interposed, but such as show it never to have been a valid lien on the land, or that it has been discharged or released. The sci. fa. is not upon the notes, or upon the mortgage, but it is upon the record, and the statute only authorizes such defenses to notes, bills, etc., and not to a suit on a record, and the statute has no application to a sci. fa. on a mortgage, or debt upon a record. We perceive no reason for being dissatisfied with either the reasoning or the conclusion of the court in those cases, and are therefore not inclined to disturb the doctrine as there settled.
But it is urged that this mortgage, and the notes to secure which it was executed, were procured by representations which were untrue, and that the plea should be regarded as a plea of fraud. The plea avers that appellant relied upon the statements of the ownership of title, in making the purchase of the land for which the notes and mortgage were given, and that the payee had no title. Even if this plea might be regarded as a plea of fraud, and not as a plea of failure of consideration, the statute has not given it as a defense to this proceeding, and the same rule must apply to this as to the other pleas going to the consideration, or set-off, unless such a defense might be interposed under the common law. Only the defense of payment, discharge, release or satisfaction, could be interposed to a sci. fa., at the common law, and our statute has made no change in that respect. And in other actions, a plea averring that a specialty upon which suit is instituted, was procured by fraudulent representations, has been held not to be good at common law. Taylor v. King, 6 Munf. 358 ; Durr v. Munsell, 13 J. R. 430 ; Franchat v. Leach, 5 Cow. 506 ; Vrooman v. Phelps, 2 J. R. 177. In our practice in suits upon bills, notes, bonds, etc., this rule of the common law has been departed from, and it may be regarded the settled practice in this State, in ordinary actions upon such instruments, but the practice has never been extended to this proceeding. The case of McFadden v. Fortier, 20 Ill. R. 509, is not regarded as being opposed to the views here expressed. That case does not hold, nor was it intended that it should, that a plea of fraud might be interposed as a defense to a sci. fa. to foreclose a mortgage. It only decided that the plea was bad according to the rule of pleadings.
But even if fraud was an appropriate defense, this plea at most, is no more than a plea of failure of consideration, and we think not even that. It entirely fails to aver that appellee and the other persons, knowingly, falsely, and fraudulently made the representations, alleged by the plea to have been untrue. For aught that appears, those making them may have done so in the most perfect good faith. The scienter has always been regarded as an essential ingredient in the perpetration of a fraud, as well as a reliance on the false statements as true, by the person upon whom the fraud has been committed. The demurrer was, for these reasons, properly sustained to this plea, whether it be regarded as intended as a plea of the failure of the consideration, or as a plea of fraud.
The judgment is affirmed.
Judgment affirmed.
The record in the case of John White v. John Murphy, presents the same questions which are considered in the case of White v. Watkins, and we deem it unnecessary to again discuss them here.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.
