Dow v. Seely
Illinois Supreme Court
This was a proceeding on the chancery side of the Cumberland Circuit Court, at the May term, 1859, thereof. The said Jonas Seely filed his bill to foreclose a certain mortgage, executed by the defendant, Dillard Tally, which is in the usual form, except so far as it sets up a mistake in the clause of- defeasance or condition. The bill shows that one Aaron Oldham was a party to the transaction, out of which the mortgage originated.
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This was a proceeding on the chancery side of the Cumberland Circuit Court, at the May term, 1859, thereof. The said Jonas Seely filed his bill to foreclose a certain mortgage, executed by the defendant, Dillard Tally, which is in the usual form, except so far as it sets up a mistake in the clause of- defeasance or condition. The bill shows that one Aaron Oldham was a party to the transaction, out of which the mortgage originated. The contract is set out,,with an allegation of a breach of the condition, and shows how Benjamin J. R. Dow has become a party interested. The prayer of the bill is,…
1Opinion of the CourtCaton, C. J.
The first objection is, that Oldham should have been made a party. We do not think so. While there might have been no impropriety in making him a party, and thus allowing him to be present at the taking of the account,yet that was not incjispensable. He was not a party to the mortgage, although it was given to secure advances made to him, and he is not bound by the account taken, and upon which the decree was based. At least it is too late to object for the first time, in this court, that he was not made a party.
It is next objected here, for the first time, that the report of the master does,…
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