33 Ill. 440 | Ill. | 1864
delivered the opinion of the Court:
This was a suit in chancery to foreclose a mortgage executed by plaintiff in error and her husband. The bill was exhibited against both of them, but no summons was issued or service had, but the husband of plaintiff in error filed his answer confessing the truth of the allegations of the bill. A decree was rendered ordering the payment of the money, and in default of payment, that the mortgaged premises be sold. No default was taken against plaintiff in error, nor is there anything in the record, after the bill was filed, to indicate that it was intended to take any steps against her, or in any manner to pass upon or affect her rights. She was not in court by service or otherwise, nor is the decree against her, nor does it in terms or by implication foreclose her rights in the premises. Although she was a proper party to the suit, as she has suffered no injury, and was in fact not a party to the suit, she has no right to complain of the decree. Had the decree been against her, or had her equity of redemption been foreclosed or otherwise affected, it would have been different. Her situation since the sale is precisely the same as if the proceeding had never been taken to foreclose and sell the premises.
She may institute proceedings now or in the future to redeem her interest, or for the recovery of her rights, precisely as she could have done had the suit not been brought. If she is the owner of the fee she can file a bill to redeem at any time. If her interest is a contingent dower estate, dependent on the death of her husband, at his death, if she survives him, she may then redeem that interest. But not having been made a party to this suit in the court below, she has no right to maintain this writ, and there is no error in this record of which she' has a right to complain. The decree of the court is therefore affirmed.
Decree affirmed.
