Field v. Brokaw, 40 Ill. App. 371 (1891)

March 13, 1891 · Illinois Appellate Court
40 Ill. App. 371
Cornelius R. Field et al. v. Isaac V. Brokaw et al.

Cornelius R. Field et al. v. Isaac V. Brokaw et al.

Mortgages—Foreclosure.

1. On a second appeal, questions decided on the former appeal in the same case will not be reconsidered.

2. On a bill to foreclose a mortgage, a variance between the bill and the mortgage, which the decree follows, as to whether the debt was that of a married woman or her husband, is unimportant, the mortgage being made an exhibit to the original bill. In such case the court will give to it the legal effect to which it is entitled.

[Opinion filed March 13, 1891.]

Appeal from the Superior Court of Cook County; the Hon Henry M. Shepard, Judge, presiding.

Mr. Henry W. Magee, for appellant Harriet M. Harvey.

Mr. Elmer W. Adkinson, for appellant C. R. Field.

Messrs. Dent & Smith, for appellees.

Gary, J.

This case, with the title reversed, is reported on a former appeal in 33 Ill. App. 138. This appeal is from a decree of foreclosure in accordance with the opinion of this court.

Although the record is now swelled to more than 800 pages, no new question is presented, except that after the case was remanded, Field filed a cross-bill praying for a release of the mortgage substantially upon the same grounds on which Mrs. Harvey defended. He has no beneficial interest in the property, and can not interfere in the adjustment of equities between the Brokaws and Mrs. Harvey. The former decison here, therefore governs now, and the decree is affirmed.

The supposed variance between the bill and the mortgage, which the decree follows, as to whether the debt was that of *372Mrs. Harvey, as the bill charges, or of Hr. Harvey, as the mortgage recites, was a question on the former appeal, and therefore not open on the second appeal. Allemania Fire Ins. Co. v. Peck, 33 Ill. App. 548.

But if it were open, the mortgage being made an exhibit to the original bill, the court will look to that “and give it that legal effect to which it is entitled.” Benneson v. Savage, 130 Ill. 352; National Park Bank v. Halle, 30 Ill. App. 17.

In truth, there is no defense to this case except in the audacity, ingenuity and perseverance of the counsel of Hrs. Harvey, who has fought it upon Aaron Burr’s principle, that “the law is whatever is confidently asserted and plausibly maintained.”

Decree affirmed.