Gen. No. 12,394 | Ill. App. Ct. | Jan 15, 1907
delivered the opinion of the court.
The order complained of was entered December 13, 1904, a day of the November term. December 17, a day of the same term, defendant Copelin filed his motion in writing to set aside said order, and his motion was entered and continued to the next term, with leave to file petition and affidavits in support thereof. This motion was continued by operation, of law from the December term to the January term, so that at the January term the court had jurisdiction to set aside the order of December 13, and if that order was improper Copelin’s motion to set it aside should have been granted. At the January term the court denied Copelin’s motion to set aside said order, and Ms appeal from that order brings before us the question of the propriety of the order which the court so refused to set aside.
Copelin became personally liable for the debt secured by the Peabody trust deed. He conveyed to Christine Burden, who assumed and became personally liable for said debt, and she with her husband executed a second trust deed conveying said premises to Baird to secure her note for $500 given to Copelin for a part of the purchase money. The Burdens conveyed the mortgaged premises to Calkins, subject to both of said trust deeds.
The fact that Copelin was personally liable to the complainant for the debt secured ' by the Peabody trust deed, is immaterial as between Copelin and Calkins, nor do we deem it material to inquire whether Calkins was personally liable to complainant for the debt secured by the Peabody trust deed, or to Copelin for the debt secured by the Baird trust deed. By the clauses inserted in the deed of the Burdens to Calk-ins the conveyance to him was made subject to both of said trust deeds. This made the land the primary fund for the payment of the debts secured by said trust deeds. Comstock v. Hitt, 37 Ill. 546; Palmer v. Lilly, 51 id. 331; Fowler v. Fay, 62 id. 375.
As between Copelin and Calkins the land was therefore the primary fund for the payment of the debts secured by both of said trust deeds.
Calkins was a defendant to the bill to foreclose- the Peabody trust deed, in which cause Copelin set up the Baird trust deed in his answer. The decree in that cause finds that by the terms of the Peabody trust deed the grantors therein, for themselves and all persons claiming through or under them, consented that in case of foreclosure a receiver should be appointed, who should continue in office during the redemption period, and should apply the rents collected during that period upon any deficiency decree that might be rendered; and also finds that Copelin has a second lien on said premises for $531.80. The receiver collected during the redemption period $285 of rents.
Under the trust deed, the decree of foreclosure, and the order appointing a receiver, the complainant was entitled to have her deficiency decree paid out of the rents collected by the receiver. Under the conveyance to Calkins the land was made the primary fund for the payment of the mortgage debt, and of the decree in which such debt was merged. Calkins had no right under the facts of this case, upon the payment of the deficiency decree, to have the same assigned to him, or to be subrogated to the rights of complainant under said decree against Copelin. So much of the order of December 13, 1904, as provides that the complainant shall assign his deficiency decree to Calkins, that upon such assignment the receiver shall pay complainant the amount of said decree, and that thereupon Calkins shall be subrogated to the right of complainant under said decree as against Copelin, was improper and. should have been set aside. The property sold for $147.67 less" than the amount of the first lien under the Peabody trust deed, leaving Copelin’s second lien for $531.80, under the Baird trust deed, then wholly unpaid. The Burdens, the makers of the Baird trust deed, conveyed the premises to Calkins subject to both trust deeds. The receiver collected rents during the redemption period amounting to $285. We think that under the facts and circumstances of this case the amount of the rents so collected remaining after the payment of complainant’s deficiency decree should have been paid- to Copelin to apply upon the decree. Haas v. Chicago Building Soc., 89 Ill. 498" date_filed="1878-09-15" court="Ill." case_name="Haas v. Chicago Building Society">89 Ill. 498-507; First Nat’l Bank v. Ill. Steel Co., 174 id. 140; Roach v. Glos, 181 id. 440; Schaeppe v. Bartholomae, 217 id. 105.
Copelin did not appeal from the order directing the receiver to pay the balance of rents to Calkins. February 1, 1905, the receiver paid such balance of rents to Calkins and was discharged, and the propriety of that payment cannot now be questioned by Copelin. The order appealed from- will be reversed and the cause remanded to the Circuit Court, with directions to set aside said order of December 13, 1904, and to enter an order in accordance with the views above expressed.
Reversed and remanded with directions.