36 Ill. 339 | Ill. | 1865
delivered the opinion of the Court:
There can be no doubt that the deed operated as a mortgage in equity, for all payments made by Richards upon the debts, and such was the manifest design of the parties. And' to that extent, with its accruing interest, it is a mortgage to the estate of Richards, and is a lien upon the lands in favor of the administratrix. Richards, however, having failed to pay the balance on the notes, held no lien upon the lands for the remainder, nor do his representatives. The agreement was only partially executed, and it would be inequitable to hold the lands liable to pay the debts of the estate of Richards, beyond the sum advanced in his lifetime and the portion of the debts since allowed against his estate. Had his administratrix paid the balance on the notes allowed against the estate, then the lien against the land would have been complete in her favor, to the extent of the two notes and interest.
Nor can the,administratrix claim to have any lien on the lands for indebtedness which has accrued to her outside of the agreement. No agreement between her and George Roberts is shown, that could render the land liable for the amount he has become indebted to her. Nor is there any evidence that credit was given by Richards on the faith that the lands should be held as a security at the time the indebtedness was incurred, or that the lands should be held therefor.
The question, however, remains to be considered, whether by pledging the lands to Richards for the payment of the notes, he did not become a trustee, and hold the lands charged with their payment. And when the claims were allowed against the estate of Richards, the trust fund did not then become charged with their payment, and did not authorize the administratrix to resort in equity to the fund for that purpose. Or whether the creditors holding the claims might not have exhibited their bill and had the land sold for their satisfaction, by having themselves subrogated to the rights of the administratrix. As equitable beneficiaries of the trust fund they undoubtedly had the right to have it applied to the discharge of their claims.
But inasmuch as the conveyance was, in legal effect, but a mortgage, Roberts, or his assignees, had a right to discharge the lien and satisfy the mortgage by paying the notes and interest, and refunding to the representative of Richards’ estate the amount advanced by him, with the accruing interest. The absolute title to the land never having vested in Richards or his heirs, in equity, it still remained subject to redemption from the lien with which it was thus charged, and plaintiff in error having received a conveyance from George Roberts, he succeeded to all of the rights of the latter. And having offered to redeem and to pay any lien upon the land, and the bill containing the general prayer for relief, the court below should have permitted a redemption. The decree of the court below must be reversed and the cause remanded, with instructions that the court ascertain, by a reference to the master or otherwise, the sum due upon the notes, and also the sum due to the estate of Richards, for money advanced by him as a payment on the notes, or either of them, and require its payment within ninety days from the time of rendering the decree, and decree that in default of its payment, all, or so much of the land be sold by the master in chancery as may be necessary to pay the money. And that the deed from George Roberts be canceled. And further, that the administratrix be enjoined from proceeding to sell the land under the order of the County Court. And in case of the sale of the lands, the money found to be due the estate of Richards and the balance on the notes be paid, and any surplus that may remain be paid to plaintiff in error.
Decree reversed.
