Gen. No. 13,488 | Ill. App. Ct. | Nov 11, 1907
delivered the opinion of the court.
The contentions of counsel for plaintiffs in error are, that plaintiff in error William H. Ellison is entitled to the rents and profits of the premises described in the foreclosed trust deed, executed to Fred Miller by Louis Tillman, as shown in the preceding statement, not only from the date of the master’s deed till the expiration of the time for redemption, but from that date till the date of the decree sought to be re-versed, and that the court erred in denying his petition filed after the rendition of the decree. The trust deed was recorded March 10, 1900, and Tillman, after that date, conveyed the premises to Thompson Y. Douglas, who conveyed his interest in the premises to William H. Ellison November 3,1900, by deed recorded November 7, 1900, and he, Douglas, was served with summons in the suit to foreclose the trust deed November 9, 1900. William H. Ellison was not' a party to the foreclosure suit, nor had he any notice of its pend-ency, as the master found. The foreclosure decree was rendered February 11, 1901, and a deed of the premises in question was executed by the master to the defendant in error, Bertha M. O. Miller, as assignee of the master’s certificate of sale, October 12, 1903, and she immediately took possession of the premises, and has since been in possession, and has collected the rents and profits thereof.
The propositions of counsel for plaintiff in error, in support of their contention that their client, William H. Ellison, is entitled to the rents and profits of the premises, for the time above mentioned, are, first, that he not having been a party to the foreclosure snit, the decree in that snit was, as to him, a nullity, and his right as the owner of the equity of redemption was unaffected thereby; and, secondly, that he, being the owner of the equity of redemption, is entitled to the rents and profits during the time for redemption, and subsequently thereto, until the date of the decree in question. Numerous cases are cited by counsel, and their argument is, perhaps, all that can be said in support of their contention. The question, however, is not an open one in this court, the Supreme Court having frequently and emphatically held that the only right of one not a party to a foreclosure suit, who has acquired title from a mortgagor, subsequently to the recording of the mortgage, and who was not a party to the suit to foreclose the mortgage, is the mere right to redeem from the sale of the mortgaged premises. Cutter v. Jones, 52 Ill. 84" date_filed="1869-09-15" court="Ill." case_name="Cutter v. Jones">52 Ill. 84; Kelgour v. Wood, 64 ib. 345; Taylor v. Adams, 115 ib. 570; Walker v. Warner, 179 ib. 16. The reason of these decisions is well expressed in Kelgour v. Wood, supra. The case was ejectment. Each of the parties proved a regular chain of title from a common source, one Bressler. The first link in the plaintiff’s chain of title was a deed to Bressler recorded August 18,1856, and the first link in defendant’s chain of title was a mortgage from Bressler, recorded August 16, 1856. The mortgage was foreclosed and the defendant’s chain of title ran to him from the purchaser at the foreclosure sale. The plaintiff was not a party to the bill to foreclose. The court held that the plaintiff could not recover in an opinion delivered by Mr. Justice Thornton, who, in his usually vigorous and concise style, says: “What was the condition of the parties at the time? The mortgagee was the owner of the fee as against the mortgagor and all who claimed under him, and might have recovered the premises in ejectment against them. Carrol v. Ballance, 26 Ill. 9" date_filed="1861-04-15" court="Ill." case_name="Carroll v. Ballance">26 Ill. 9; Nelson v. Pinegar, 30 Ill. 473" date_filed="1863-01-15" court="Ill." case_name="Nelson v. Pinegar">30 Ill. 473. The mortgagor and his assignees had only the right of redemption, for there had been a forfeiture of the condition of the mortgage. This right is purely equitable, created by courts of equity, and can only be asserted in them. While it is true that the complainant as the assignee of the mortgagee, did not receive the legal title, yet the assignment of the debt carried with it, in. equity, as an incident, all the interest of the mortgagee in the land mortgaged. The foreclosure and sale thereunder vested the legal estate in the purchaser, subject to any equity which had not been barred. After condition broken, the party holding the equity of redemption might have exercised his right upon equitable terms. After foreclosure, if he was not a party, he has the same right.? ’
Tajdor v. Adams, 115 Ill. 570" date_filed="1886-01-25" court="Ill." case_name="Taylor v. Adams">115 Ill. 570, is to the same effect. It is not claimed that the decree in the foreclosure suit was void, on the ground that plaintiff in error, William H. Ellison, was not a party to it, and manifestly it was not. Cutter v. Jones, Kelgour v. Wood, and Taylor v. Adams, cited supra.
The decree of foreclosure of the trust deed was rendered November 22, 1906, and the petition of William H. Ellison, set forth substantially in the statement preceding this opinion, praying that possession of the premises he turned over to him, etc., was filed February 7, 1907. November 22, 1906, was one of the days of the November term, 1906, of the Circuit Court, and February 7, 1907, was a day of the January term, 1907, of that court. Between these two terms the December, 1906, term intervened.
Waiving the question discussed by counsel for the parties, respectively, whether the court had jurisdiction at the January term, 1907, to entertain the petition, we think it clear that the court did not err in denying it. The petition claims that William H. Ellison is entitled to the rents and profits of the premises in question, and prays that Bertha M. C. Miller be directed to turn the possession over to him, and that he be authorized to collect the rents and profits. The question whether William H. Ellison was entitled to the rents and profits of the premises in question was put in issue by the pleadings, and was decided against him by the court'. Therefore, the petition was substantially a petition for a rehearing, and it was a matter resting in the discretion of the court to entertain or deny the petition, and error cannot be assigned on its denial.
William H. Ellison is the father-in-law of Douglas; he testified that he paid nothing for the premises; that he did not negotiate with Douglas for the deed; that he never paid any of the taxes on the premises, or collected any of the rents,. and did not know where the premises were situated. His testimony leaves it, to say the least, doubtful whether the deed was ever actually delivered to him. When asked to produce it, he said, “I don’t know anything about the deed. It has been mislaid for me,” and a certified copy of it was put in evidence.
The master’s, deed to Bertha M. C. Miller was recorded October 14, 1903, and she has been in possession of the premises ever since, so that Ellison had constructive notice of her title; the bill was filed December 7, 1905, Ellison’s appearance was entered in the cause, and January 6, 1906, he filed .his answer, setting up for the first time a claim to the premises. Ellison’s testimony seems to be frank and honest, and we think it apparent that the conveyance to him was a scheme of Douglas, who, he says, was a worthless man, and that Ellison himself had nothing to do with it. However, we have considered the case on the theory that Ellison, by the Douglas deed, acquired the equity of redemption.
The decree will be affirmed.
Affirmed,