| Ill. | Mar 23, 1887
delivered the opinion of the Court:
The decree of the circuit court was manifestly erroneous. Whatever the partition decree might have been, Brown, the real party in interest, would not have been bound thereby, he not having been made a party to the suit. (Scanlan v. Cobb, 85 Ill. 296" date_filed="1877-01-15" court="Ill." case_name="Scanlan v. Cobb">85 Ill. 296.) And it was his right, notwithstanding that decree, to have Emery, the trustee, proceed, and make' sale of. the whole or any part- of the land covered by the trust deed, for its satisfaction. In thus performing his duty, under the trust deed, to Brown, in making such sale, Emery, although he was a party to the partition suit, would not have been liable to refund to the owner of the land any money which he might have received on the sale. Nor, as is claimed, would there have been -any ratification of the partition decree by Brown, so as to make it binding on him, by his reception of the proceeds of the sale of the ten acres. His right to such proceeds would not come from the decree, but from his trust deed, under which he was entitled to have the proceeds of the sale of all or any part of the land embraced in the trust deed, applied to its satisfaction, so far as necessary for that purpose ; and receiving the amount for which a part of the land was sold, it being less than the debt secured, would not affect the lien of the trust deed on the residue of the land.
But the circuit court was evidently under a misconception of what the partition decree was. It took that decree as confining the lien of the trust deed to the ten acres, and exempting from such lien the residue of the one hundred and thirty-four acres covered by the trust deed. That, the decree did not do. The decree recited, that it had been made to appear to the court that the ten acres would sell for a sufficient amount to satisfy the trust deed, and ordered the ten acres to be sold by the master in chancery, and that he apply the proceeds of the sale to the payment of the trust deed, bringing the overplus, if any, into court; that the costs be paid out of the proceeds, and partition was made of the rest of the land. This was all. There was no expression that the lien of the trust deed should be restricted to the ten acres, or that the proceeds of the sale of the ten acres should be taken in full satisfaction of the trust deed, or that the residue of the land should be exempted from the lien of the trust deed. The decree, as appears, proceeded upon the assumption that the ten acres would sell for sufficient to satisfy the deed of trust, but it did not declare that the ten acres, or the proceeds of its sale, should satisfy the trust deed. There was, in fact, realized from the sale of the ten acres, only about half the amount of the debt secured by the trust deed. It would be so erroneous that a mortgage on one hundred and thirty-four acres of land should be made one on only ten acres of it, or that a sum which proved to amount to only about one-half of a mortgage debt admittedly due, should be ordered to be taken in full satisfaction of the whole debt, that a decree should not be held as so ordering, without express language to that effect. The Appellate Court, then, rightly reversed the decree of the circuit court.
The main question in the case was, as to the effect of the partition decree upon the mortgage, and whether Shurtleff is entitled to contribution, and his right to contribution being determined, the case, under the direction of the Appellate Court, will go back to the circuit court, to decide how contribution shall be made, and neither of the courts below having acted upon that subject, this court, perhaps strictly, should not speak thereon, its proper province being but to review the action of the lower courts upon the subject. The question, however, of how contribution should be made, has been discussed by counsel, and we are requested to pass upon it. In view of this, it may not be improper to give an intimation of our opinion as to the general rule applying, so far as it appears to be in dispute between the parties.
In the partition, there was set off to the widow, as her dower, lot 4, and eighty acres and forty acres of land besides. On February 10, 1876, Clifton H. Moore purchased Thomas B. and Horace Adkisson’s two-tliirds interest in the eighty acres, and Horace Adkisson’s one-third interest in the forty acres, and Thomas B. Adkisson’s one-third interest in lot 4; and on January 9, 1880, Horace Adkisson conveyed his one undivided third interest in the forty acres to Abner B. Phares. The parties, here, appear to be agreed that the incumbrance should be apportioned upon the several interests as partitioned, so that each several interest shall pay its ratable share, and the only real matter in difference, as here discussed, seems to he in respect to the lands purchased by Moore and Phares, —whether they should contribute at all, and if so, in what manner. The eighty and forty-acre tracts were not included in the deed of trust, but as the money borrowed was applied in payment of the debts of the estate, and thus relieved the lands from the lien of the debts, it is insisted they should be charged with the payment of the money borrowed. This we think to be reason sufficient for charging the interest of the minor heir, Frank Adkisson, who did not join in the mortgage, but not for charging the lands,—the eighty acres and forty acres in the hands of Moore and Phares. The money borrowed had paid off all the debts of the estate before Moore and Phares purchased, so that when they came to purchase, there were no debts whatever of the estate, and they took their lands entirely free and unincumbered with any lien for ■debts. But lot 4 was in the mortgage, and we think the interest in that lot' which Moore purchased should stand chargeable. The matter then stood thus: The widow having paid what was considered as the proper proportion her dower estate ■should contribute, the one-third interest of Thomas B. Adkisson, consisting of his lot 5 and his reversionary estate in .lot 4 after the termination of the dower estate therein, was chargeable with his proper proportion of the incumbrance,— say one-third thereof. He then, on January 6, 1876, conveyed a part of his interest, to-wit, lot 5, to Andrew Hutchin. This left the remaining part of Thomas B. Adkisson’s interest, to-wit, his reversionary estate in the dower lot 4, in his hands, and as between these two parts, to satisfy the incumbrance which rested upon the whole of the two parts, the part remaining in Adkisson’s hands, his said reversionary estate, should first be exhausted before recourse to the part which he had sold to Hutchin. Afterwards, on February 10, 1876, Thomas B. Adkisson conveyed his reversionary estate in lot 4 to G. H. Moore, and it stood chargeable in Moore’s hands in the same manner that it was in the hands of his grantor;— that is, liable to be first applied,—and leaving lot 5 only liable for any deficiency there might be after such application. Subsequently, Hutchin conveyed lot 5 in different parcels to Shurtleff, Mills and Vogle, and Yogle conveyed his parcel to Ely, and Ely conveyed the same to Dunmire.
The rule mentioned applies where the mortgagor has conveyed the mortgaged premises in different parcels, and the grantees of these parcels again convey them in parcels, the grantees .of the latter parcels being liable, under this rule, for the share of the mortgage chargeable upon their grantor’s share of the premises, in the inverse order of conveyance to them. (2 Jones on Mortgages, sec. 1621.) The rule will not, however, be applied in any case where its application would work injustice. Ibid.
The judgment of the Appellate Court will be affirmed, and the cause remanded to the circuit court for further proceedings in conformity with the judgment of the Appellate Court.
Judgment affirmed.
Subsequently, on June 14, 1887, upon an application for a rehearing, the following additional opinion was filed:
Per Curiam: We are asked to grant a rehearing in this case, or to modify the final order therein so as to conform to the opinion of the court,—
“Because the final order of this court in affirming the judgment of the Appellate Court is inconsistent with the opinion rendered herein, in this, the Appellate Court holds that Frank Adkisson’s (the minor’s) interest is liable for one-third of the original incumbrance, and that Thomas B. Adkisson’s interest was chargeable for the same proportion, but that he had discharged it, except as to $200 on Hutehin’s; that Thomas B. Adkisson should pay $200, and Hutchin, if solvent, should pay the residue of Thomas B.’.s third, and if not solvent, then the residue to be charged to his (Hutchin’s) grantees, in the inverse order of alienation from. him. (See opinion of Appellate Court in this cause, filed November 20, 1886.)”
The record does not show any such holding of the Appellate Court. We have no knowledge of any such holding, and our opinion in this case does not affirm any such holding, if there be such, of the Appellate Court. The circuit court had decided, merely, that the complainant was not entitled to contribution, because the alleged incumbrance upon the lands which he paid off was not an existing incumbrance upon the lands, it having been before that time extinguished. The Appellate Court reversed that judgment, and we affirm merely that judgment of reversal, and not any other judgment or holding of the Appellate Court. That is all the judgment or holding of the Appellate Court which the record shows.
The judgment of the Appellate Court, as shown by the record, is, that the decree of the circuit court be reversed, “and that this cause be remanded to the circuit court, with directions to ascertain the amounts due, by way of contribution, from the other parties liable, and decree that they pay the same to complainant.” We are asked to see opinion of Appellate Court filed November 20, 1886. The record does not contain the opinion of the Appellate Court. The opinion has not, in any way, been brought to our notice, and we can not travel out of the record to the clerk’s office of the Appellate Court to search the files there for matter upon which to base any decision. The remanding order of the Appellate Court makes no reference whatever to the opinion as to any proceeding in conformity thereto, but the direction is general, to ascertain the amounts due, by way of contribution, from the parties liable. If the opinion of the Appellate Court assumes, in any way, to find how contribution should be made, we know nothing of it, and affirm no holding in that regard of the court, but merely affirm the judgment that the complainant is entitled to contribution, and any future action of the courts below should proceed upon that understanding. The remanding order made by this court, for further proceedings in conformity with the judgment of the Appellate -Court, means what it says,—that the further proceedings be in conformity with the judgment of that court, as shown by the record, and that merely, and not in conformity with its opinion.
We see no cause to grant a rehearing, or to modify our final order in the case.
Rehearing denied.