181 Ill. 64 | Ill. | 1899
delivered the opinion of the court:
The record in this case presents a very curious, state of facts. The mortgage, sought to be foreclosed, covered lands lying in two counties, to-wit, Will county and Du-Page county. Two bills were filed about the same time, one in the circuit, court of Will county to foreclose the mortgage against the lands lying in that county, and one in the circuit court of DuPage county to foreclose the same mortgage against the lands lying in DuPage county. In the Will county proceeding, decree of foreclosure was rendered, and sale was had, and one undivided one-fifth part of the 440 acres situated in Will county, being the interest of the appellee,"Jennie E. Morse, in said lands, was struck off and sold to the appellant banking company for §3080.00, and a certificate of purchase therefor issued to the company. An undivided one-fifth part of the 440 acres of land was 88 acres; and the undivided interest, thus amounting to 88 acres, was worth more than the amount bid for it and set forth in the certificate of sale.
The foreclosure suit, instituted in the circuit court of DuPage county, did not come to decree or sale, but was settled and dismissed before the entry of any decree therein. It was so settled and dismissed, because the mortgagors, Jennie E. Morse and her husband, paid to the company the sum of §1694.42, being the amount due to the company upon the mortgage over and above the $3080.00 bid at the sale of the Will county land.
In the partition suit which was begun while both the foreclosure suits were pending, the court ignored the certificate of sale, held by the banking company upon the undivided 88 acres in Will county, owned by Jennie E. Morse, and set off to Jennie E. Morse, not the 88 acres of the Will county land and 52 acres of the DuPag'e county land, but 24.59 acres of the Will county land and 120 acres of the DuPag'e county land. The effect of this action was to take out of the operation of the certificate 63.41 acres of land in Will county.
Undoubtedly, the appellant company was entitled, after the expiration of the time of redemption, to a master’s deed for the undivided one-fifth interest, amounting to 88 acres, of Jennie E. Morse in the Will county land, if the same should not be redeemed. The partition decree, however, did not give her full interest in the Will county land to Jennie E. Morse, but gave 63.41 acres thereof to tenants in common other than herself; and gave her an increased portion of the DuPage county land, to-wit, 120 acres.
The effect of a partition, in which a mortgagee is joined as a party, is to substitute for an undivided interest in the whole land the portion set off to the mortgagor in severalty; and the lien of the mortgage, which was theretofore upon an undivided interest, falls upon the particular portion so set off and aparted to the mortgagor. (Loomis v. Riley, 24 Ill. 307).
The banking company, holding the certificate of purchase, was a party defendant to the partition suit; and the court was there seeking to shift the titles of the several parties, so that it could make a specific decree, and settle the lien of the banking' company upon the specific land allotted to Jennie E. Morse, and release it from those portions of the land, which were specifically set aside to the other owners.
It certainly would have been unjust to reduce the interest of Jennie E. Morse in the Will county land, purchased by the appellant, and take away from the appellant a large portion of its security, unless something should be given in the place of the part thus taken away. Appellant’s certificate of sale called for what was equivalent to an undivided 88 acres of land located in Will county, but the portion set off to Jennie E. Morse in the partition suit was only 24.59 acres. To say that appellant should only have 24.59 acres subjected to the lien of its mortgage or certificate of sale in the partition suit, when it was entitled to 88 acres, would be to do palpable injustice. To avoid such a result the partition decree clearly provided, that the certificate of sale should be a lién upon the share of the premises set off to Jennie E. Morse, that is to say, upon the 24.59 acres of land in Will county and the 120 acres of land in DuPage county.
While, therefore, the partition decree released from the certificate at least three-fourths of its value, it gave to the mortgagor, Jennie E. Morse, an additional amount of land in DuPage county in place of that, which she held in Will county, and subjected such additional amount to the certificate of sale. The lien of the certificate was released from all the land in Will county not set apart to her, but at the same time it was made a lien upon the land set apart to her in both counties.
We are not concerned with the question, whether the court did right or wrong in entering such a decree, as was entered in the partition suit. The court there had jurisdiction of all the parties before it, both the mortgagors and the mortgagee; it had jurisdiction of the subject matter of the action; it had full and complete jurisdiction in partition, and the purpose of the decree was to ascertain the rights of the several parties, and shift their titles and liens upon the land before the court.
« If there was any error, it,was not a jurisdictional error, but one merely as to the merits of the case. The partition decree has never been reversed, but stands and is in force. That decree was agreed to by all the parties in interest in the partition and in the land there involved.
The circuit court, in the case at bar, has found from the proof before it: “that said decree in partition so entered by this court * * * was agreed upon by all parties in interest in said cause and in said land.” This finding of the court is sustained by the evidence. The final decree in the partition suit was drafted and submitted to all the parties before it was entered. *
In view of the fact, that the partition decree was entered by agreement, it makes little difference what effect the execution of a certificate of sale has upon the mortgage lien. It is immaterial here, whether the execution of the certificate released the mortgage lien or not. If, before the entry of the partition decree, the appellant company had challenged the right of the court to reduce its security in the manner above stated, a different decree may have been entered, but the proof shows that the appellant, coming into court with its certificate, and Jennie E. Morse, coming into court for the purpose of having a specific amount of land set apart to her, accepted the decree without any objections or exceptions. Therefore, the present appellees are estopped from complaining of the fact, that the partition decree gave to the appellant company a lien upon the lands in Will county and DuPage counts’-, set °S by that decree to Jennie E. Morse.
It is contended, however, by appellees, that the payment of $1694.42 and the release of the mortgage upon the DuPage county land destroyed the lien of the appellant, and removed its right to claim under its certificate any of the DuPage county land, and any of the Will county land, except the 24.59 acres. To sustain this contention is to allow the appellees to take advantage of what, in the view presented by them, was either a mistake, or sharp practice.
The release of the mortgage, so far as it applied to the lands in DuPag'e county, was not intended by counsel for appellant as a release of the lien, provided for in the partition decree by an arrangement between himself and counsel for the complainant in the partition suit. The object of making the release and the stipulation to dismiss was to dispose of the mortgage foreclosure pending in DuPage county, on the theory that the partition suit would so affect the foreclosure in-Will county, as that the master’s certificate of sale would be of no use as a foundation of title, and that, when the court came to make its final decree, as it did on September 22, 1894, it would extend the lien of the certificate to each and every part of the real estate set apart specifically to Jennie E. Morse.
The release in question was executed and agreed to before the final decree in the partition suit was agreed upon and entered; and it did not operate, and was not intended to operate”, as a release of appellant’s claim upon the lands in DuPage county, which might be set off to Jennie E. Morse by the partition decree. On the contrary, that decree preserved to the appellant a lien upon the land, set off in severalty to her in that proceeding, for the payment of the amount still remaining unpaid upon the mortgage indebtedness.
We are of the opinion, that the judgment of the Appellate Court is erroneous, and that the decree, entered by the chancellor in the circuit court, correctly adjudicated upon the rights of the parties. Therefore, the judgment of the Appellate Court is reversed, and the decree of the circuit court is affirmed, and the cause is remanded to the latter court for the execution of its decree in pursuance of the terms thereof.
Reversed and remanded.
