32 Ill. 32 | Ill. | 1863
delivered the opinion of the Court:
We cannot hesitate to reverse this decree. With deference, we say we can hardly appreciate the appearance of plausibility in the position assumed by the counsel for the complainant. The facts are these: Prouty agreed to sell to Benton the premises in question, on time. After this contract was made, and before any of the money was paid, Benton executed this mortgage, on the premises, to Garver, which was recorded. Afterwards Benton and Prouty rescinded their contract for the sale of the premises; and Benton, in form, conveyed them to Prouty, from whom, by several mesne conveyances, they passed to Alden, against whom Garver filed this bill to foreclose the mortgage. By his answer Alden offers to convey the land according to the terms of the original contract of sale from Prouty to Benton, which was in force at the time the mortgage was executed, upon receiving the purchase-money therein stipulated, but the court decreed a foreclosure of the mortgage as a first lien on the land, the same as if Benton had paid the full consideration for the land at the time he executed this mortgage. The argument by which this decree is sought to be maintained is this, if we understand it: The contract of sale from Prouty to Benton was the same in equity as if Prouty had conveyed the legal title to Benton, who, at the same time, had executed a mortgage back to Prouty for the purchase-money, which would be the first mortgage on the premises, and Garver’s a second mortgage. And then, when Benton reconveyed the legal title to Prouty, that first mortgage became merged in the legal title, and thus ceased to exist, leaving Garver’s a first mortgage upon the estate. This, it seems to us, is asking a court of equity to consider that a good many things were done which never were done, and which were never intended to be done, and which were never required to be done, to execute the intentions of the parties; not for the purpose of doing equity between the parties, but for the purpose of perverting the intentions of the parties, and of doing gross inequity. It is the duty of a court of equity, certainly, no less than of courts of law, to look at the substantial facts, to ascertain the true intention of the parties, and to do substantial justice between them, and not to become the instrument of injustice. When intendments are made, it is for the purpose of effectuating the real intention of the parties and to do complete justice between .them. Whatever interest Benton had in this land, at the time he executed this mortgage, was conveyed and incumbered by the mortgage, and no more. That was a right to purchase the land for the consideration stipulated in the contract of purchase. At. most, Garver could acquire no more rights to, or interest in, this land by virtue of this mortgage than Benton, the mortgagor, had. Even if he had taken an absolute conveyance from Benton, instead of thisg mortgage, he would have acquired no more than a right to receive a conveyance upon payment of the purchase-money. Alden purchased from Prouty after this mortgage was recorded, and hence took it subject to the rights of the mortgagee, but only subject to those rights. The mortgage lien was upon the contract of purchase, and entitled him to foreclose the mortgage, and have that contract sold for the satisfaction of the mortgage. For this purpose the contract still subsisted, notwithstanding it had been destroyed ds. between the original parties to it. These were all the rights of Garver, and all that he could require to be done, and all that justice and good conscience can allow.
The decree is reversed and the suit remanded.
Decree reversed.
