| Ill. | Sep 15, 1874
delivered the opinion of the Court:
It is impossible to uphold this decree in its present form. It provides that in case there shall be no bidders for the premises when offered in parcels, then the premises may be sold in whole, to make the whole amount of the indebtedness due and to become due, of which $3,400 would not become due until July 3, 1876.
This was erroneous. Not that the court might not direct the whole mortgaged premises to be sold if that should be most conducive to the ends of justice in reference to the equitable rights of all parties, although a part only of the mortgage money had become due. Bank of Ogdensburgh v. Arnold, 5 Paige Ch., 38" date_filed="1835-01-06" court="None" case_name="Bank of Ogdensburgh v. Arnold">5 Paige, 38. The decree, it is true, finds that Charles Blazey is insolvent; that the premises cannot be sold in parcels without great prejudice to both complainants and defendants. But there is no allegation in the bill to admit such proof, the only allegation in that regard being that there are situated upon the premises a brewery, dwelling-house, etc. The premises embrace a block of ground and several lots in another block, besides other land. All the improvements might have been on any one lot, or parcel, for aught that appears by the bill. There is no allegation that the premises were not capable ot being sold in parcels, or of being divided, without manifest injury to all the parties concerned, nor of facts showing the same. There is an allegation and a finding in the decree that the premises are going to ruin and decay, and that they are a meager and scant security; but those circumstances would not give the complainants any right in equity to have the premises sold for a debt not due. Campbell v. Macomb, 4 Johns. Ch. 533. And had it been necessary, in order to raise what was due, to sell the whole of the mortgaged premises because consisting of one entire subject, care should have been taken to protect the rights of the mortgagors as far as might be. The mortgagors would have had a period of time after sale for redemption. In case of a sale of the whole premises, in order to the exercise of such right to redeem, they would have been obliged to pay $3,400 before the time when it was due from them by their contract. Their rights in this respect should have been saved by the decree.
The $3,400 mortgage embraces land not included in the $5,500 mortgage. In case there could not be a sale in parcels, the whole mortgaged premises in both mortgages were to be sold for the satisfaction of both mortgage debts.
The improvements, for any thing that appears, and what constituted the chief value of the whole property, might have been situated upon that part of the premises in the $3,400 mortgage which was not covered by the other mortgage; and thus, under the decree, the $5,500 mortgage debt might have been largely satisfied out of land described in the $3,400 mortgage, and not covered by the mortgage to secure the $5,500 debt, whereas that debt was not entitled to be satisfied out of any other land than that embraced in the mortgage given to secure its payment.
The decree must be reversed, and the cause remanded for further proceedings consistent with this opinion.
Decree reversed.