Brewster v. Peter Schoenhofen Brewing Co.

Mr. Justice Waterman

delivered the opinion of the Court.

Appellant insists that the plaintiff was estopped from offering evidence of the terms of the sale to Radtke, or that at the time of the execution of the mortgage the possession of the ^property was in appellee, because such evidence, it is alleged, was in contradiction of the recitals in the mortgage. In support, of its contention, appellant cites Schultz v. Plankinton Bank, 141 Ill. 116. That case was between a mortgagee and one in privity therewith, claiming thereunder. As such privy and claimant, Schultz was not allowed to contradict the terms of the written instrument under which he sought to defend. In the present case, appellee is a party to the mortgage, while appellant is neither party nor privy thereto. Appellant is not estopped by anything in the mortgage, and therefore in a suit with him, appellee is not; estoppels are mutual. Bigelow on Estoppel, 334; 1 Greenleaf on Ev., 13th Ed., Secs. 211-379.

But for the transaction resulting in the mortgage, Badtke would not have had the property which is the subject of the present controversy, and, consequently, appellant’s execution would not have been levied thereon.

Only by reason of the one transaction, sale and mortgage, was appellant’s execution made a lien at all; by reason of the sale and mortgage the execution became a lien subject to that of the mortgage. Paterson v. Higgins, 58 Ill. App. 268; Curtis v. Root, 23 Ill. 53-58; Van Duzor v. Allen, 90 Ill. 499; Blatchford v. Boyden, 122 Ill. 657.

The judgment of the Circuit Court is affirmed.