44 Ill. 53 | Ill. | 1867
delivered the opinion of the Court:
When Samuel F. Dodds executed the deed of trust to secure the payment of the debt he owed McGoon, on the block of ground, and the eighty acres of land, he unquestionably gave the right to sell the land before the homestead should be subjected to its payment. There can be no doubt that the trustee could, and it may be, under the statute which declares the land on which the debtor resides shall be last taken on execution, that under a decree of foreclosure he could have been compelled to, sell that tract first. But as between the parties to the deed of trust, there can be no question that such a right existed, and when Snyder became the owner of the debt to McGoon, and the security, he without doubt succeeded to the same right. As between him and Dodds, and his heirs, he could not, either at law, in equity, or under the contract, have been compelled, before selling the land, to advance $1,000, to subject the block of ground, which was the homestead of Dodds, to sale, before resorting to the land for a satisfaction of the debt. And if he is now compelled to do so, it must be, so far as appears from this record, by reason of acts other than his own, and without his consent. In this he had the prior as well as the superior equity.
The law does not require a person having a lien on two funds, one of which is already incumbered, and the other free, to remove the incumbrance and satisfy his lien out of that fund, because some other person has voluntarily acquired a subsequent lien on the unincumbered fund; it would be inequitable to impose such an obligation. Mor does a different rule prevail, when a party has a mortgage or other lien on a tract of previously unincumbered laud, and on the surplus of the homestead tract of the debtor, over $1,000, and another person holds a mortgage on the unincumbered tract. In this case, if the relief asked should be granted, Snyder would be compelled to advance $1,000 before he could sell the homestead, as it appears from the evidence not to be divisible without great injury to the property. The giving of the subsequent mortgage to Provost, did not in any degree alter the rights of Snyder; nor did its foreclosure and the sale of the land. Provost took his mortgage on the equity of redemption only, subject to all of the rights of the holder of the McGroon debt, and the purchaser under that foreclosure obtained no other or better right.
Appellant purchased the tract of land subject to the prior incumbrance. She no doubt regulated her bid with a view to the prior incumbrance, and only gave what the land was worth, over and above what it was bound for under the deed of trust to secure the McGroon debt. Knowing of that lien, it is by no means probable that she or other bidders would give the full value of the property, and if this is the case, it is not perceived by what means she has an equity to compel other property to bear the just lien then existing upon her own. If she has had the benefit of a reduction of price to the extent of this incumbrance, every principle of justice requires that she should relieve her property from the burthen by the "payment of the debt. Having been made a party to the foreclosure suit, and failing to show any equity which should have relieved the tract of land from its original liability, she should be bound by the decree, and especially so, when she has failed in her bill in this case to establish facts which should exonerate the land from this burthen.
Again, if she has equities, they are not superior to those of the widow and family of the deceased, and we have seen that Snyder’s are superior to hers. Upon a careful examination of this whole record, we perceive no grounds for granting the relief sought, and the court below committed no error in dismissing the bill, and the decree must be affirmed.
Decree affirmed.