Frank v. Bruck

Bailey, P. J. The decree in this case is manifestly a departure from the provisions of the statute giving a period of redemption in all cases of sales under a decree of foreclosure of a mortgage, and can only be supported by the' consent of the parties now seeking to call it in question. There can be no doubt that parties laboring under no disability can, by their express consent, authorize the rendition of a decree barring themselves of any rights which may be the subject of litigation. It is an elementary principle that a decree by consent cannot be appealed from, nor can error be properly assigned upon it. 1 Barb. Chan. Prac. 373; Armstrong et al. v. Cooper, 11 Ill. 540. Upon the same principle, any particular provision or portion of a decree, entered by the consent or agreement of a party, cannot be by such party assigned for error. Here it appears upon the face of the decree that Barbara Frank consented to an absolute sale of the mortgaged premises. This recital of the decree is conclusive, and establishes beyond controversy the fact that such consent was given. She cannot now be permitted to withdraw or question such consent, or complain of the provisions of the decree entered in pursuance thereof. It is insisted, however, that Henry Frank, the infant defendant, being by reason of his disability incapable of waiving his legal rights, the decree as to him must be held to be erroneous. This would undoubtedly be true if said infant was possessed of any interest in the premises affected by the decree; but the entire estate having passed by devise to Barbara Frank, no interest therein passed by descent to the infant. He is a mere stranger to the mortgaged premises, and cannot complain of any of the provisions of the decree in relation thereto. Perceiving no error in the decree, it must affirmed. Decree affirmed.