| Ill. | Dec 18, 1899
delivered the opinion of the court:
It is only in virtue of power conferred by the statute a money decree can be rendered by a court of chancery in a foreclosure proceeding against the mortgagor or other person liable for the mortgage debt. (8 Am. & Eng. Ency. of Law, 264.) Section 16 of chapter 95 of the Revised Statutes, entitled “Mortgages,” authorizes courts in this State to render such decrees “for any balance of money that may be found due to the complainant over and above the proceeds of the sale or sales” of the mortgaged premises, and provides that such a decree may be conditionally rendered at the time the decree of foreclosure and sale is entered, or that it may be entered after the sale and ascertainment of the balance due. It is to be noted this statute authorizes such decrees to be rendered only “for any balance of money that may be found due to the complainant over and above the proceeds of the sale or sales” of the mortgaged premises. A judgment or money decree must be for a specified sum of money. (1 Black on Judgments, secs. 1, 3, 118.) The finding of the amount of any such “balance” involves the exercise of the judicial function. . The decree authorized by the statute to be entered in advance of a judicial determination of the amount of such “balance” cannot, therefore, have effect as a judgment or personal money decree, but only to establish that the complainant is entitled to a personal money decree against the parties so to be charged, for such amount or balance of money as may thereafter be judicially ascertained or found “to be due,” over and above the proceeds of the sale or sales of the mortgaged premises. Speaking of such conditional decrees it is said in Black on Judgments (sec. 42): “Thus, a judgment of foreclosure directing the sale of the mortgaged premises and the payment by the defendant of any deficiency which may arise on such sale is not such a final judgment as that an action will lie upon it, because, on such a judgment, further proceeding's, such as the confirmation of the referee’s report, etc., must be had before a personal judgment can be entered. So a judgment dissolving a partnership, ascertaining the sum of money due by the co-partners to the plaintiff, ordering a sale of the co-partnership property and effects, and decreeing payment therefrom of the amount due plaintiff, but providing that in case the amount realized from such sale is not sufficient to pay the judgment that the plaintiff shall be entitled to a personal judgment against the individual members of the firm for the deficiency, is not a final judgment, but merely an interlocutory decree.”
In Jones on Mortgages, (sec. 1709,) speaking of deficiency decrees, that author says: “The judgment contemplated is one for the balance of the debt remaining after applying towards it the proceeds of the sale. The first step is to ascertain what the amount of the balance is. Therefore a judgment for a deficiency can be had only when the sale is completed; and it can only be known what the deficiency is upon the coming in of the report of the sale and the confirmation of this. The usual practice is for the referee (master) to state the amount of the deficiency in his report of the sale, and to report who of the defendants are liable to pay the same to the plaintiff. This is provided for in the original judgment. There can generally be no contingent judgment for such deficiency entered beforehand.” And again, in section 1730: “The decree for a deficiency of proceeds does not have the force and effect of a judgment at law, so as to become a lien, until this deficiency is ascertained. This deficiency can only be ascertained from the sale.”-
The decree in question does not purport to be a final decree for any definite or specified sum. It does not appear from the terms thereof that it has ever been determined, judicially or otherwise, that there is any balance of money due the complainant. It is lacking in the essentials of a judgment or personal money decree in chancery, and is not such a judgment or decree. A judgment at law or a personal money decree existing in favor of the complainant, is a necessary pre-requisite to the maintenance of suits in equity of this character in all cases except where the demand of the complainant is equitable in its nature, and for that reason enforceable primarily in a court of chancery. (Ladd v. Judson, 174 Ill. 344" date_filed="1898-10-24" court="Ill." case_name="Ladd v. Judson">174 Ill. 344.) The insistence of the appellant was and is that a mortgage was executed to him on certain real estate to secure an indebtedness due to him from the mortgagor, and that the said George W. Bennett purchased the mortgaged premises and expressly contracted with the grantor and mortgagor to assume and pay the mortgage debt to appellant, and the position of appellant seems to be that his remedy upon the said contract of assumption of the said George W. Bennett is equitable in its nature and enforceable independently in a court of chancery, and for that reason it is not required he should have reduced the claim to a judgment in order to sustain his bill. The error of this position is, that conceding the insistence of appellant as to the nature and existence of his claim to be true, his right to recover upon the alleged contract made by said George W. Bennett with the mortgagor to pay the debt due to the appellant is by an appropriate action at law. Webster v. Fleming, 178 Ill. 140" date_filed="1899-02-17" court="Ill." case_name="Webster v. Fleming">178 Ill. 140.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.