Opinion of the Court.

structive notice of the rights of the mortgagee; occupies the same position as his grantor; and is subject to the same equities. Either may be treated as tenant or trespasser, upon forfeiture of the condition of the mortgage, at the pleasure of the mortgagee. Dunn v. Rogers, 43 Ill. 260; 1 Hill. on Mort. 123; 4 Kent Com. 157; Hughes v. Edwards, 9 Wheaton, 489; Doe v. Maisey, 8 B. & Cress. 767.

The grantees of the mortgagor were never treated as trespassers, and their possession was not hostile to, or inconsistent with, the right of the mortgagee. Partridge v. Bere, supra; Hitchman v. Walton, 4 M. & W. 409; Doe v. Barton, 11 Ald. & Ell. 307.

There can be no doubt, that before protection can be afforded, under the limitation law of 1839, the possession must be adverse. It must be hostile in its inception, and so continue. It must be actual, continued, visible, notorious, distinct, and hostile possession. Hawk v. Senseman, 6 Ser. & Rawle, 21; McClellan v. Kellogg, 17 Ill. 503; Cook v. Norton, 48 Ill. 20.

The relation of mortgagor and mortgagee; the fact that the purchaser only succeeded to the rights of the former, and with notice of the incumbrance, and the consequent privity between the parties, forbid the conclusion of an adverse possession. The possession must be regarded as in subordination to the mortgage; and it can not cease to be of that character until there is an open disclaimer of holding under it, and the assertion of a distinct title, with the knowledge of the mortgagee. Brown v. Devine, 61 Ill. 260; Geller's Lessee v. Eckert, 4 How. U. S. 289.

The case of Manning v. Warren, 17 Ill. 267, differs from the present in an important particular. The entry, in that case, was under a deed executed by the mortgagor prior to the execution of the mortgage, and, hence, the possession could not be said, with any propriety, to be subservient to the mortgage.

As to the payment of taxes, it was the duty of the mortga gor, as well as his grantees, while in possession, to pay the

Opinion of the Court.

taxes, and no right could be acquired thereby. The mortgagee might well regard such payment as a protection of his interest. Wright v. Langley, 36 Ill. 381.

We are of opinion that the record shows a release of all the mortgaged premises, except the land conveyed to appellants, and that the mortgage lien rested upon it. The releases were executed prior to the conveyance to appellants.

The heirs of the mortgagor were not necessary parties, as all the premises mortgaged had been sold and conveyed, and, therefore, they had no subsisting interest in the land.

We think that the decree should be affirmed.

Decree affirmed.

INDEX.

ABANDONMENT.

ABANDONMENT OF HOMESTEAD. See HOMESTEAD, 3, 4.

ABATEMENT.

NON-JOINDER OF SECRET PARTNER.

1. In an action of assumpsit to recover the value of services rendered, the defendant pleaded in abatement the non-joinder of his alleged partner: Held, that proof showing there was such a partner, but that he was a secret partner, and of whom the plaintiff had no knowledge at the time he was employed by the defendant, would not support the plea. Goggin v. O'Donnell, 66.

ASSESSMENT OF DAMAGES.

2. When issue is found against the defendant, whether jury should assess them. Where a plaintiff takes issue on a plea in abatement, and the jury find against the defendant, they should assess the plaintiff's damages so that final judgment may be given. It is not necessary to swear the jury specifically to assess the damages, but swearing them to well and truly try the issue joined between the parties, and a true verdict render according to the evidence, includes the assessing of the damages. Ibid. 66.

DEATH OF A SOLE PLAINTIFF IN EJECTMENT.

3. Revivor in the names of a part of the heirs. See EJECTMENT, 1, 2.

ACKNOWLEDGMENT OF DEEDS.

IMPEACHMENT BY PAROL.

1. Where the certificate of acknowledgment of a mortgage in due form shows that the wife relinquished her dower and homestead right, in the t absence of fraud or imposition upon the wife, or combination between the mortgagee and the officer taking the acknowledgment, she will not be allowed to show in defense of a bill to foreclose that she did not in fact relinquish her dower and homestead right. Monroe v. Poorman et al. 523.

2. Where the certificate of the acknowledgment of a deed is in conformity to law, it can only be impeached for fraud or imposition. The certificate must be judged of by what appears upon its face. There

(537)

ACKNOWLEDGMENT OF DEEDS. IMPEACHMENT BY PAROL. Con-

tinued.

fore, proof negativing the necessary facts shown therein, will not alone
be sufficient to impeach the certificate. Monroe v. Poorman et al. 523.
DEFECT THEREIN OBVIATED BY PROOF OF EXECUTION.

3. An objection that a deed admitted in evidence was defectively
acknowledged will be obviated by proof of its execution. Hobson et al.
v. Ewan, 146.

ACTIONS.

BEFORE EXPIRATION OF CONDITIONAL CREDIT.

1. When the plaintiff performs work for a defendant under a con-
tract to give a certain time for the payment of the price, upon condition
that defendant will give his note bearing a certain rate of interest on
the completion of the work, which he refuses to do, the price will be-
come due upon the completion of the work, and suit may be brought
before the expiration of the proposed credit. Van Horn et al. v. Bur-
roughs et al. 388.

EXCAVATION IN STREET BY AN INDIVIDUAL.

2. Payment of damages therefor by the town, and action by the town against
the person making the excavation. See PLEADING, 1, 2.

ADMINISTRATION OF ESTATES.

GRANTING LETTERS OF ADMINISTRATION.

1. Presumption as to jurisdiction-questioning the proceedings collaterally.
In an action of ejectment, a sale of land by an administrator was
claimed to be void on the ground that the intestate died in the State of
Kentucky, and that the administrator appointed was neither a relative
nor creditor, and not interested in the estate, and consequently letters
could only be granted to the public administrator: Held, that this ob-
jection could not be raised in a collateral proceeding. Hobson et al. v.
Ewan, 146.

2. The county court being invested with complete jurisdiction of
the subject of granting administration on the estate of deceased persons,
its action in a case properly brought before it, however erroneous it
may be, must be regarded as valid and binding in every collateral pro-
ceeding until reversed. And where that court granted administration
on the estate of one who died intestate, and was a non-resident, it will
be presumed, in all collateral proceedings, that it bad satisfactory evi-
dence before it to justify its action. Ibid. 146.

SALE OF LAND TO PAY DEBTS.

3. Notice of application. The following notice was given of the pre-
sentation of a petition of an administrator for an order to sell land to
pay the debts of his intestate, to wit: "To all persons interested: Take

ADMINISTRATION OF ESTATES. SALE OF LAND TO PAY DEBTS.
Continued.

notice, that I intend to present a petition to the circuit court at its next
term, to be holden in Monmouth, in the county of Warren, and State
of Illinois, on the third Monday of October, A. D. 1853, praying said
court for an order to sell all of the real estate belonging to the estate of
Bushnell Willey, deceased, for the purpose of paying the debts against
said estate." It was signed by the administrator, and dated Monmouth,
Ill., August 2, 1853, and published for the time required by the statute:
Held, that the notice was sufficient to give the court jurisdiction.
Hobson et al. v. Ewan, 146.

4. Under the statute in force in 1853, the administrator had the
choice of two modes by which to bring the heirs into court, the one by
serving a notice, with a copy of the account and petition, on each of
the heirs or their guardian, and the other by publishing a notice, to all
parties interested, in the nearest newspaper. Either mode was sufficient
to bring the heirs and all interested parties into court, and thus give
the court jurisdiction of their persons, and in neither was it necessary
to state the names of the heirs, or other interested parties, in the notice.
Ibid. 146.

5. An administrator's sale of real estate, under an order of court,
was attacked on the trial of an action of ejectment on the ground that
the notice of the application was, that he would apply for an order to
sell all the lands of the intestate, instead of "the whole, or so much
thereof as will be sufficient to pay his debts:" Held, that as the statute
prescribed no particular form of notice, and as the notice itself fully
apprised all parties interested of the nature of the application, and the
time and place when and where it would be made, the objection was not
tenable. Ibid. 146.

6. So, also, when such notice was directed "to all persons inter-
ested," an objection that the notice did not request all persons interested
in the estate to show cause why the land should not be sold to pay
debts, was considered without force. The same strictness required in
applications to sell lands for delinquent taxes does not apply in proceed-
ings of this kind. Ibid. 146.

7. Finding as to notice. When the circuit court, on the petition of an
administrator for an order to sell the lands of his intestate to pay the
debts of the estate, finds in its decree that due notice of the application
had been given by publication, it is at least prima facie evidence that the
notice required by law had been given. Ibid. 146.

8. Of the petition. Although the statute required the administrator
to state in his petition for an order to sell real estate to pay debts
“what real estate the testator or intestate died seized of, or so much
thereof as will be necessary to pay his or her debts," yet when a peti-
tion, after stating that there remained no personal assets, and the ex-