33 Ill. 331 | Ill. | 1864
delivered the opinion of the Court:
The record in this case presents these questions: First, does an after acquired title by a mortgagor inure to the benefit of the mortgagee who has taken his mortgage with covenants of warranty ; and second, is the decree in the case in proper form.
As to the second point, it is insisted the decree is for the payment of the money due by the mortgagors, by all the defendants, in other words that it is a decree against the defendants personally, for which an action of debt would lie. If this was so, the decree would be modified so as to restrict it to the mortgagor, the real debtor. But we regard the decree as, in effect, an alternative one; that if the money is not paid by the time limited, then the premises shall be sold, giving the option to the subsequent incumbrancers or claimants to pay the money or suffer the property to go to sale. ■
Upon the other point, we understand the doctrine to be, if a conveyance be with general warranty, the subsequent title acquired by the grantor will inure by estoppel to the benefit of the grantor, and this for the purpose of avoiding circuity of action McCracken v. Wright, 14 Johns. 194; King v. Gilson, 32 Ill. 348 And a subsequent purchaser from the mortgagor under his after acquired title is also estopped, if he had notice. Somes, Administrator, v. Skinner, 3 Pick. 58; Wark v. Willard, 13 N. H. 389; Jones et al. v. King, 25 Ill. 388.
In this case the plaintiff in error had notice of Barr’s deed with covenants of warranty to Allen, and he held the title purchased óf Oassingham by Barr, and paid for with Barr’s money, as the mere trustee of Barr. Mowry, the assignee of Allen of the mortgage, must be entitled to the benefits of all the covenants contained in Barr’s deed to him, and Barr, and those claiming under him or for him, are estopped by his covenants. ' It was a fair contract between Barr and Allen, which they had a right to make, and Allen’s assignee is, in equity, entitled to the benefit, of it.
The judgment is affirmed.-
Judgment affirmed.