48 Ill. App. 270 | Ill. App. Ct. | 1892
Opinion of the Court, the
The appellee, Robinson, held subject to the mortgage, and as his deed was not of record and he had not possession of the land, he can not complain that he ivas not made a party defendant to the foreclosure proceeding.
The rents and profits of the land, as well as the land, was pledged by the mortgage for the security and payment of the amount due the appellee. This authorized the appointment of a receiver, in the discretion of the court, without regard to the solvency of the mortgagor. 8 Arner. & Eng. Ency., page 234; 2 Jones on Mortgages, Sec. 1516. And such appointment was lawfully made, though by a decree subsequent to the original decree. 8 Amer. & Eng. Ency. of Law, page 239.
By the appointment of the receiver the appellants obtained an equitable lien on -the rents and profits of the land during the statutory period allowed for redemption, if necessary, for the full payment of any deficiency in the security. In support of this view, see 1 Jones on Mortgages, Secs. 773, 774 and 775 ; 2 Jones on Mortgages, Sec. 1536; High on Receivers, Secs. 643 and 644; Beach on Receivers, Sec. 532.
Appellee’s title to the property was subject to the mortgage held by the appellants, and his right to the rents and profits of the land was, under the mortgage and the decree of the court, secondary to that of the appellants.
The payment by the appellee to the master in chancery of the amount requisite under the statute to effect a redemption from the sale did not operate to destroy this lien of the appellants, but such lien remained unaffected by the redemption, and could only be discharged by payment of the deficiency or by the application by the receiver of the rents and profits toward the payment of such unpaid balance. Therefore, the receiver should not have been discharged, nor should any portion of the money received from the rents of the lands have been ordered paid to the appellee.
The decree in each of these respects is reversed and the cause is remanded, with directions to the court to order the rents in receiver’s hands paid to the appellants, and to cause all other sums received by the receiver during the period allowed for redemption paid to the appellants so far as necessary to satisfy and pay the deficiency aforesaid, with legal interest thereon from the date of the sale, the remainder, if any, to be paid to the appellee, Robinson.
The costs in this court will be taxed by the clerk to the appellee, Robinson. Reversed and remanded, with directions.