Chickering et al. v. Failes, surv., etc., et al. by re-enactment of the legislature of Illinois, ever since and now. Defendants insist that the bill is multifarious, and on all the points made by the answer they pray the same advantage as if they had demurred to the bill. The defendants also insist that the complainants are barred and precluded from asserting title, or any right of redemption, by the fact which these defendants affirmatively allege, that they, and those under whom they hold and claim, have paid all taxes legally assessed upon the premises for more than seven successive years, to wit, for twenty years and over; they, the said defendants, and those under whom they claim, all of said period having and holding under color of title made in good faith, which fact, by the statutes of this State in force during all of said period, constitutes a limitation to the bringing of any action, or asserting and exercising any right of redemption in mortgage cases, by virtue of the second section of the act entitled "An act to quiet possessions and confirm titles to lands," approved March 2, 1839, and also by virtue of the Revised Statutes of Illinois, 1845, chapter 24, section 9, entitled "Conveyances," the said lands being vacant and unoccupied. The answer denies all combination and confederacy. Upon hearing on bill, answer and proofs, the court below dismissed the bill. GOODWIN, LARNED & GOODWIN, for Appellants. MATHER & TAFT, for Appellees. WALKER, J. Was the proceeding, by scire facias, sufficient to bar the equity of redemption, in the premises embraced in the second mortgage executed by McClure to Hubbard? It is insisted that it was not, for several reasons. First, because it is alleged that the returns to the writs did not give the court jurisdiction to try and determine the case. The sheriff's return to the first of these writs was, "Josiah E. McClure not found, November 7th, 1842." This was the return day of this writ. The return of the second was this: "The within named Josiah E. McClure not found, March 25th, 1843." This latter writ was tested on the 18th day of January, 1843, and was returnable to the term to be held on the first Monday of March, and it was returned during that term. There is nothing in the record which indicates when the writs came to the hands of the officer. But in its absence, the law will presume that they were delivered at the time they were issued. Neither the statute, Chickering et al. v. Failes, surv., etc., et al. nor the practice require the officer to indorse the date of their delivery to him, and we can perceive no necessity for such evidence. The statute has only required service, or two nihils, to authorize the court to proceed to hear and determine the case. It is again urged, that these returns only imply, that the defendant was not found on the day named in the return. It is not usual, if it has ever been done, for the officer to certify that he has not been able, during the whole time the writ was in his hands, to find the defendant. Mr. Justice Blackstone, in his Commentaries, vol. 3, p. 283, says, if the sheriff is unable to find the defendant, he returns "that he is not found, non est inventus." The language of these returns is, in substance, and almost precisely the same as that required by this authority. They clearly conform to the requirements of the law, and are strictly in conformity to the general practice, and must be held sufficient. If the return is, that service has been had, then it should distinctly appear at what time, so that it may appear whether it was as long as ten days before the return day of the writ. It is likewise urged that the judgment is invalid, and therefore fails to bar the equity of redemption, because Richards was not made a party to the proceeding. Had this been a proceeding in equity, this would be undeniably true. But as it is a proceeding given and regulated alone by statute, and is in a court of law, the conclusion is irresistible, that it was the design of the legislature, in the absence of a requirement that it should be in the form of an equitable proceeding, that it should be governed by the practice of the courts of law, and not of equity. This court held, in the case of The State Bank v. Wilson, 4 Gilm. 57, that the statute authorizing this mode of foreclosure, has given the judgment the effect of a recovery at law, against the mortgaged premises. That it creates no new liability, but is merely a means of rendering a former lien available. And that, "the purchaser under the judgment acquires all the right in the mortgaged premises, which the mortgagor had, at the time of the execution of the mortgage, entirely unaffected by the title or lien of purchasers or incumbrancers subsequent to the recording of the mortgage, or with notice, who in order to save themselves, must redeem as in case of an ordinary sale on execution at law." In all suits at law the proceedings are confined alone to the parties to the transaction. In no proceeding in that form, are subsequent purchasers or incumbrancers ever made parties, but are required to take notice of the proceeding, and failing to do so, their rights are not protected. A plaintiff after recovering a judgment is not required to give notice to persons having sub Chickering et al. v. Failes, surv., etc., et al. sequently acquired rights, before he can proceed to sale and satisfaction. He may sell, and they, to preserve their rights, must redeem within the period limited by the statute. This then being a proceeding and judgment at law, the rights of the parties must be governed by the rules of law and not of equity. The statute having authorized a foreclosure in this mode, and not having required any person but the mortgagor and mortgagee, or, in case of their death, their executors or administra tors, to be made parties, and the statute having been complied with, it must be held sufficient. The decree in bankruptcy was rendered in May, 1842, and the last writ of sci. fa. was sued out in January, 1843, and judgment was rendered in the month of March following. Thus it will be observed, that, by the operation of the bankrupt law, McClure's equity, by the decree, had passed to Richards, before the judgment was rendered; in fact, before the proceeding was instituted by the scire facias. By the decree in bankruptcy, Richards was appointed assignee, and succeeded, by that act, to McClure's interest in the land which passed to him; and how can it be said, that the District Court still retained exclusive jurisdiction over the land? It no doubt still had jurisdiction and power over the assignee, and might affect the title transferred to him, or the title of other parties, by further proceedings, but having transferred the bankrupt's title in the land to the assignee, its exclusive jurisdiction over the land itself, if it ever had any, was at an end. But even if this were not so, the proceeding in bankruptcy was in a different State, and parties there having an interest in the land were not chargeable with the notice of lis pendens. And as the application of the mortgagor was for the benefit of the bankrupt law, and not for the sale of the land, or any proceeding to affect the mortgagee's interest, no reason is perceived why a sci. fa. might not have been sued out whilst his application was pending. The legal effect of that decree, as far as it related to this land, was simply to pass the mortgagor's equity of redemption, precisely as if it had been transferred by deed. It appears then, that, in any point of view, this proceeding by sci. fa. must be held to have been regular, and the sale and sheriff's deed, under that judgment, were sufficient to bar all equities of redemption in the lands embraced in the second mortgage. In the case of the bill to foreclose the mortgage first given, there was no return indorsed upon the summons. It only contained the indorsements signed by a portion of the defendants, acknowledging service, without date, but whether the writ was ever in the hands of the sheriff, fails to appear. In the case of Chickering et al. v. Failes, surv., etc., et al. Mc Daniels v. Correll, 19 Ill. 226, it was held by this court, that a summons and return, under the statute, are expressly required, to give the court jurisdiction of the persons of non-resident defendants. Without that formality, they were held not to be properly before the court, and all its proceedings, as to them, were void. In that case, there was publication, but no summons or return. In this case, there was the writ, but no return, which brings it fully within that case, which is decisive of this question. Therefore, for the want of jurisdiction of the persons of the non-resident defendants, their equity of redemption was unaffected by the decree of strict foreclosure, and still subsists, unless barred by the statute of limitations. It is, however, urged with much earnestness, that the mortgage and the decree of strict foreclosure are color of title, which, with seven years' payment of taxes, operates as a bar to the redemption. In proceedings in chancery, the statute may be interposed and relied upon, as in an action of law. Whilst it is only in analogy to the law, yet it, in the same manner and to the same extent, follows the law in its application. Then, is a mortgage and decree of strict foreclosure color of title? By the mortgage deed the legal title passes to the mortgagee, but in equity, the right of redemption remains in the mortgagor, even after condition broken. But at law, after condition broken, the mortgagee may bring his ejectment and recover possession. The mortgage is a deed of conveyance with a condition annexed, and purports on its face to convey the title, but the condition authorizes the mortgagor to defeat the title thus conveyed and to reinvest it in himself, by a performance of the condition. After a failure to perform the condition, the title apparently becomes absolute in the mortgagee, and is clearly color of title. As equity still permits a redemption notwithstanding a breach, the mortgagee is regarded as holding the title in trust for the mortgagor, to be divested when the money is paid. It is a rule, of general application, that a trustee shall not be permitted to rely upon the efflux of time, under the statute of limitations, so long as that relation exists. Until it is terminated, he is estopped to interpose the bar. So of a tenant who acquires possession from a landlord. In each of these cases the possession will be held subordinate to, and under the title of, the mortgagee or the landlord. The possession so acquired, and whilst so continued, is held not to be hostile. So of the payment of taxes. Whilst these several relations exist, the possession and payment of taxes cannot be held to be for the benefit of the occupant, and cannot in good faith be relied upon for hostile purposes against the mortgagor or landlord. To bring themselves within the good faith of this statute, Chickering et al. v. Failes, surv., etc., et al. they must first surrender the possession if it has been obtained, or, as against the mortgagor, notice must be given that payment of taxes is claimed to be in the right of the mortgagee independent of the mortgage, or the relation must be apparently terminated in some other mode. After a foreclosure, or an effort to foreclose the mortgage, by decree or deed which purports to have that effect, the presumption then arises that all acts done in reference to the property, are done under a claim of ownership, by the mortgagee, and referred to his color of title. If they are such as is required by the statute, and for the period of time designated by the statute, they would form a bar to a redemption. It is also urged that as Richards, Fake and Raymond, were not properly before the court, and as their right to redeem was not barred by the strict foreclosure of this mortgage, that Lee in his lifetime, and his heirs since his death, were chargeable with notice, and cannot be permitted, in good faith, to rely upon the statute, to bar the right of redemption. It is a rule of uniform application, that notice of the claim of other persons does not apply under the statute of limitations, as in case of subsequent purchasers or incumbrancers, under the registry act. In the case of Woodward v. Blanchard, 16 Ill. 433, this court recognized and acted upon this doctrine to its full extent. In that case it was held, that an auditor's deed, to a purchaser of land at a sale for taxes, although the law under which the sale was made was unconstitutional, and the sale consequently void, yet in the hands of the purchaser, unless chargeable with bad faith, was color of title, and might be relied upon as a bar, when the other requirements of the statute were satisfied. The mere fact that the sale was void, was held not to be evidence of bad faith. Again, in the case of Laflin v. Herrington, 16 Ill. 301, it was held that title absolutely void in its inception, where held by a grantee of the purchaser at the void sale, unless chargeable with fraud, is claim and color of title made in good faith, within the meaning of the statute. Whilst these decisions were under the eighth section of the conveyance act, no difference is perceived between it and the ninth section of the same act, as it regards this question. It seems to be altogether immaterial, whether the decree was sufficient or not, to bar the equity of redemption, to render it color of title. The effort was made to bar it, and the decree was entered for that purpose, and in the absence of fraud, or proof showing that it was in bad faith, we must hold that it is color of title made in good faith. If the decree was not warranted, it was no more bad faith for the mortgagee to rely upon it as color of title, than for a purchaser at an unconstitutional and void |