144 Ill. 413 | Ill. | 1893
delivered the opinion of the Court:
The first question, and, in our opinion, the controlling one upon this record, is whether the mortgaged property, upon the death of Dunn, after decree of sale, but before sale made pursuant thereto, descended as real estate to his widow and heirs at law.
The doctrine of equitable conversion as recognized in Baker v. Copenbarger, 15 Ill. 104; Rankin v. Rankin, 36 id. 299; Jennings v. Smith, 29 id. 121; Haward v. Peavey, 128 id. 435, and Matter of Corrington, 124 id. 367, cited by counsel on behalf of plaintiff in error, can, manifestly, have no application to this question, for the reason that the conversion directed by the decree of sale was conditional — that is, it merely authorized the power of sale to be exercised for the purposes contemplated by the mortgage—and did not require a sale absolutely, as was required in those cases. The property was to be sold under the decree only in the event that the amount due on the mortgage, and the costs, should not be paid at or before the time of the sale. Payment of those sums at any time before sale completed would satisfy the decree, extinguish the power of - sale, and thus prevent the conversion. And so, necessarily, until after sale, there could be no certainty that there would be a sale, and the interest- of the owner in the land would remain simply burdened with the decree — to be sold if the money should not be paid as provided by the decree, and not to be sold if that money should be thus paid. The decree simply authorized the power of sale to be exercised — it did not compel it to be exercised at all events — and so, in principle, the case is not different than it would have been without decree before the enactment of our present statute requiring such mortgages to be foreclosed.
. Dunn’s purchase and assumption of the mortgage debt placed him in the shoes of Cass. 1 Jones on Mortgages, sec. 740. His title was good as to everybody but the mortgagees. Their interest is merely the right to subject the land to the payment of their debt, and before entry for condition broken, on purchase under sale, pursuant to decree, it is not such an interest in land as may be sold on execution or mortgaged. King v. Cushman, 41 Ill. 31. But Dunn’s title was such an interest. Finley v. Thayer, 42 Ill. 350.
And being such an interest, it was the subject of dower under our stature. Sec. 1, chap. 41, R. S., 1874.
Dunn having died before sale made, there was no conversion of the estate, and it must, therefore, have descended as real estate to his widow and heirs in precisely the same condition in which he held it after decree rendered. Suppose that it had been found practicable, at the sale, to have satisfied the mortgage by the sale of a divisible part of the land, and it had been thus satisfied. This, it is clear, would have disencumbered the property not sold ; and it must be equally clear that the property thus disencumbered would have belonged to the widow and heirs under the statute of descents. Ho one but the mortgagee could have objected to such a sale. So, it can, upon like principle, concern no one but the widow and heirs and the mortgagee, whether the mortgagee, or other purchaser at the sale, instead of bidding the amount of the mortgage debt and costs for a part of the property, bids a sum greater than that amount for the whole of the property. The excess must represent and take the place of so much property a§ it is for; and as was the interest in- the original property, so must the interest be in this money — its representative. Pickett v. Buckner, 45 Miss. 236. And this is in accordance with the ruling in Titus v. Neillson, 4 Johns. Ch. 452.
It is unnecessary to consider what would have been the relative rights of these parties, under certain circumstances, had redemption been made from the sale; for there is no perceivable connection between rights in the excess above the indebtedness,’paid at a mortgage sale, and the rights growing out of a redemption from such a sale. The widow and heirs of Dunn stand, as respects the sale and a redemption from it, precisely where he would have stood had he lived. Since, therefore, if he had lived and not redeemed from the sale, he would not have been thereby deprived of the excess paid at the sale above the amount of mortgage debt and costs, it is impossible that they can be.
The question of the rights of the widow in the excess paid at a sale under a mortgage, subsequent to the death of her husband, was not presented by the record in Pahlman v. Shumway, 24 Ill. 131.
We do not regard it material to determine that the encumbrance, under which the sale was here effected, was, strictly speaking, a purchase money encumbrance. We deem it enough that it was an encumbrance which had priority over the claims of all others, and that, except as to that encumbrance, Louisa Dunn was entitled to dower in the lands affected by it.
It is objected that it was erroneous to modify the decree entered in the lifetime of Dunn. When that decree was entered, Louisa’s claim to dower was inchoate only. It could not then be certainly known that it would ever be consummate, and that decree, therefore, did not have and could not have the effect of depriving her of dower.
She does not seek a read judication of questions passed upon by that decree, but simply the assertion of rights with respect to its subject-matter which have arisen since.
The decree is affirmed.
Decree affirmed.
