25 Ill. 282 | Ill. | 1861
The mortgagor of a chattel, having the right of possession for a definite period, has an interest which may be sold by execution. The purchaser under the execution acquires thereby, the right of possession and the absolute ownership, subject to the incumbrance.
Niles, in this case, was an incumbrancer prior to the execution, and so was Horner. Niles, by his purchase-under the execution, acquired the right of immediate possession of the property, and the absolute ownership also, subject only to his own and Horner’s incumbrance. By extinguishing these incumbrances, Niles became the absolute and undisputed owner, as a stranger would have been who had purchased at the sheriff’s sale, and discharged the incumbrances. By paying off Horner’s mortgage, and taking the property into his possession as his own, his own incumbrance was thereby extinguished, for he could not subject the property in his own hands, to its payment; he could not foreclose against himself, or sell the property to pay himself. He was paid by operation of law.
As a question of intention, we are satisfied, as the mortgaged property is shown to have been worth much more than the judgments under which it was sold, together with the two mortgages, and his paying off Horner’s incumbrance raises a strong implication that Niles took the property in payment of his own note and mortgage. Taking the property subject to his own mortgage he thereby satisfied his own debt. ' He purchased the property at the sheriff’s sale for much less than the real value by -reason of the incumbrances upon it, and it would not be just that he should hold the property and be permitted to collect the debt also. The judgment is reversed, and the cause remanded.
Judgment reversed.
