68 Ill. 244 | Ill. | 1873
delivered the opinion of the Court:
This was a suit in equity for the foreclosure of a mortgage executed by Morgan, December 20, 1859, to secure the payment of two promissory notes of the same date, for $285 each, payable in one and two years, respectively. Hanna and Weed were made parties, the former as a subsequent purchaser, and the latter as a subsequent mortgagee of the mortgaged premises.
The court below, on final hearing, dismissed the bill.
The only defense set up was, that of a release of the mortgaged premises -executed by the complainants to Morgan on the 28th of October, 1869, which was at a time subsequent both to the purchase by Hanna and the mortgage to Weed.
The proof shows very satisfactorily that the supposed release was executed by the complainants and sent to their agent to be delivered to Hanna upon payment of the balance which was remaining due of the mortgage debt; that Hanna afterwards obtained the possession of the releasé from the agent on the promise of the former to pay said balance in a few weeks, but that he has never paid any part thereof, and it still remains due and unpaid.
It sufficiently appears, from the evidence, that the release set up is not an operative one, and will not have effect until the mortgage debt is satisfied.
Instead of dismissing the bill, the court should have rendered a decree of foreclosure for the satisfaction of the unpaid portion of the mortgage debt.
The decree is reversed, and the cause remanded for further proceedings in conformity herewith.
Decree reversed.