| Ill. | Jan 24, 1891
delivered the opinion of the Court:
The appellant, being the owner of the first mortgage upon certain property and also of the second mortgage or trust-deed upon the same property, foreclosed the latter by bill in chancery and bought in the equity of redemption. There was no intervening incumbrance. The property was worth more than the amount due on the first mortgage added to the amount of the bid therefor at the foreclosure sale. The sale was made subject to the first mortgage. The debt secured by the first mortgage was over due when the sale under the foreclosure of the trust-deed was made. During fifteen months after the sale while the right of the mortgagor and his creditors to redeem continued, no merger occurred by the mortgagee’s.purchase of the equity of redemption at the foreclosure sale under the second mortgage or trust-deed. But if, after the expiration of the fifteen months allowed for redemption, the appellant had obtained a master’s deed upon the certificate of purchase held by it, it is admitted that there would then have been a merger, or, at any rate, an extinguishment of the mortgage debt. The ease of Biggins v. Brockman, 63 Ill. 316" date_filed="1872-01-15" court="Ill." case_name="Biggins v. Brockman">63 Ill. 316, is precisely applicable to the ease at bar, with the exception that, there, a sheriff’s deed was taken out after the right to redeem from the execution sale had ceased, while, here, the Bank neglected to obtain a deed from the Master after the expiration of the fifteen months; and, although more than five years have elapsed since the expiration of the time of redemption, no master’s deed has yet been executed to the holder of the certificate.
It is not denied,, that the purchase by the appellant of the property under the state of facts above set forth would operate in equity as a payment or extinguishment of the debt secured by the mortgage, if the certificate of purchase had been surrendered and a master’s deed had been executed. When one, who is absolutely entitled in his own right to a charge or incumbrance upon land, becomes the owner in fee of the same land, with no intervening interest or lien, the charge will at law merge in the ownership and cease to exist.- Under like circumstances a merger will take place in equity where no intention to prevent it has been expressed, and none is implied from the circumstances and the interests of the party. (2 Pomeroy’s Eq. Jur. sec. 790.) The premises in such case become the primary fund for the payment of the mortgage, and whoever acquires that fund and the mortgage also must be regarded as having applied the fund to the payment of the mortgage.. (Lilly v. Palmer, 51 Ill. 331" date_filed="1869-09-15" court="Ill." case_name="Lilly v. Palmer">51 Ill. 331; Jones on Mtges. see. 865.) The indebtedness will be presumed to have been discharged so soon as the holder of it becomes invested with the title to the land upon which it is charged, “on the principle that a party may not sue himself at law or in equity.” “The purchaser is presumed to have bought the land at its value less the amount of indebtedness secured thereon, and equity will not permit him to hold the land and still collect the debt from the mortgagor. (Biggins v. Brockman, supra; Weiner v. Heintz, 17 Ill. 259" date_filed="1855-12-15" court="Ill." case_name="Weiner v. Heintz">17 Ill. 259; Shinn v. Fredericks, 56 id. 439.)
We do not think it makes any difference in the application of these principles to the case in hand, that no master’s deed has ever been issued to the holder of the certificate of purchase.
The Circuit Court had before it, when, it made its decree, the Bank with whatever of equitable right remained in it, and the widow and heirs of the mortgagor, Reis, with whatever title remained in them, or had reverted to them after the lapse of the five years; and, with all these parties before it, it decreed that the Bank should take the property in question in satisfaction of the mortgage. It does not appear that any third persons have acquired any rights in the property. The only persons besides the Bank having any interest are the appellees, and the appellees have tendered the property to the Bank, and, in their pleadings, they offer to surrender it and disclaim any right, title or interest in it. We see no reason, therefore, why the Court had not the power to in some way clothe the Bank with the ownership of the -property in view of all the circumstances here detailed. We think the Court decided correctly in holding that the indebtedness secured by the note and mortgage had been paid, and that the judgment in the county court upon said note should be cancelled. But we think that the Court should have required the complainants in the cross-bill to make conveyances to the Bank of the property within a certain time, and that, in default of their doing so, the master should convey it.
We agree with the Appellate Court that the Circuit Court erred in decreeing the note and trust-deed in the cross-bill to •be cancelled. It was sufficient to order the cancellation of the note and mortgage named in the original bill. When the trust deed was foreclosed, the total amount bid was $2350.00. After crediting the $2350.00 upon the amount of the decree in the foreclosure suit, the Bank had the right to enforce the balance of the decree, and to have the judgment in the county court upon the note secured by the trust deed stand, after applying as a credit the proceeds of the foreclosure sale. The Appellate Court modified the decree of the Circuit Court so far as to recognize and preserve to the Bank said right; and its action in this regard is approved. But we must send the case back on account of the failure of the Circuit Court to direct the property to be conveyed to the -Bank in the manner above specified.
The judgments of the Appellate and Circuit Courts are reversed, and the cause is remanded to the Circuit Court with directions to modify its decree in the respects indicated herein and in the judgment of the Appellate Court.
Judgment reversed.