149 Ill. 60 | Ill. | 1894
delivered the opinion of the Court:
This was a bill filed to foreclose a junior mortgage, against the purchasers at a foreclosure sale under a senior mortgage without offering to redeem from such sale. Conceding that the complainants were not parties to the foreclosure of the senior mortgage, and that they were permitted to show that Lapham, who was a party to that proceeding, (Brasher v. Van Cortlandt, 2 Johns. Ch. 242; Walton’s Exrs. v. Herbert, 4 N. J. Eq. 73,) was hot, and that they were, the legal owners and holders of the indebtedness secured by the junior mortgage, their rights under their bill would not be materially changed. It is familiar that a complainant must recover, if at all, according to the allegations and prayer of his bill. As before said, the bill does not seek to redeem from the sale under the decree foreclosing the senior mortgage, the validity and regularity of which is not questioned.
It is, however, insisted, that as the complainants were not parties they were not bound by the decree and proceedings thereunder, and may proceed to foreclose their mortgage, subject to the lien of the senior incumbrance, as if no foreclosure thereof, and sale and conveyance, bad been made. This is a misapprehension. Their security was upon the equity of redemption remaining in the mortgagor or grantor in their deed of trust, and upon -foreclosure of the senior mortgage, and a sale and conveyance in pursuance thereof, the equity of redemption in the mortgagor was extinguished, and nothing remained in him upon which the junior mortgage could attach or that could he sold on foreclosure of their security. By the foreclosure of the prior mortgage, and sale and conveyance thereunder, the legal estate became vested in the grantee in such conveyance, and left nothing in the mortgagor and nothing in the junior mortgagees except the right to redeem in equity, and, upon redemption, to have foreclosure of their mortgage and the land decreed sold for the satisfaction of the same, including the sum advanced to make the redemption. (Jones on Mortgages, sec. 1064; Cutter v. Jones, 52 Ill. 84; Kenyon v. Shreck, id. 382; Kilgour v. Wood, 64 id. 345 ; Scates v. King, 110 id. 456.) As the junior mortgagees had, prior to the foreclosure of thq senior mortgage, a right of redemption, that could not be cut off by a decree in a proceeding to which they were not parties.
But it is insisted, that while complainants may not have the right to foreclose the senior mortgage, or to,foreclose their mortgage as against the purchasers or parties deriving title under the foreclosure of the senior mortgage, they still have the right to foreclose as to all persons whose rights are subordinate to their rights, and that the rights of James and wife, the mortgagors, are subordinate, and a foreclosure should have been decreed against them. Undoubtedly a junior mortgage may be foreclosed upon the equity of redemption, subject to the mere lien of a senior incumbrance, and the purchaser thereunder acquire the equity of redemption. But, as we have seen, after foreclosure of the senior mortgage, and a sale and conveyance of the mortgaged premises, the interest theretofore existing under the senior mortgage and the equity of redemption are merged, and the grantee in such conveyance takes the fee, subject only to an equitable right of redemption in junior incumbrancers who were not parties to the decree of foreclosure. Nothing remained in such junior mortgagees except a right in equity to redeem, and, upon redemption, to subject the land to the lien of their mortgage.
It is objected that the court erred in admitting in evidence-the record of the former foreclosure proceeding, to which appellants were not parties. The evidence was clearly admissible. While it could not have the effect of barring their equitable right of redemption, it was competent to show the foreclosure, and the cutting off of the equity of redemption of the mortgagors.
No discussion of other equities claimed to arise in favor of o “ Walk and Potratz, who are alleged to have purchased relying upon the recitals in the decree cutting off the beneficiaries under the second mortgage, will be necessary.
We are of opinion that the judgment of the Appellate Court affirming the decree of the circuit court was correct, and if will be affirmed.
■Judgment affirmed.
Mr. Justice Bailey, dissenting.