119 Ill. 312 | Ill. | 1887
delivered the opinion of the Court:
The rulings of the Appellate Court questioned by the argument on behalf of appellants, are, first, that inasmuch as the petition for mechanic’s lien, before amendment, only prayed that it be enforced against Freeland B. Gardner’s leasehold interest in lot 1, and the building thereon, it can not be regarded as a proceeding pending against lot 4 at 'the time that the mortgage was executed to White, and the several deeds were executed to Goodrich, and by Goodrich to Alva Bradley and Alvira Cobb, and hence, as to those parties, the petition for a mechanic’s' lien is not to be regarded as filed until November 1, A. D. 1SS1, the date of filing the amended petition; second, that Goodrich took the place of White, under the deed of trust, and Bradley and Cobb took the place of Goodrich, and now Bradley and the heirs of Cobb are entitled to invoke the protection of the limitation provided by section 28 of the statute in relation to liens, just as White might have invoked it before sale; third, any rights which the petitioners might have had in Gardner’s equity of redemption are foreclosed by the sale, pursuant to the power in the trust deed; fourth, that the covenant on the part of the heirs-at-law of George Manierre, deceased, with Freeland B. Gardner, with regard to the valuation of the building and improvements on lot 1, and the payment therefor by the Manierre heirs, is not a covenant running with the land, and it therefore gave him no lien upon the lot of which the petitioners can avail in .this suit. Gardner v. Watson, 18 Bradw. 392.
We think these rulings are sufficiently vindicated in the opinion filed by the Appellate Court, and will only add, we think it is clear, on principle, that when the limitation of section 28 of the. statute entitled “Liens, ” (Rev. Stat. 1874, p. 668,) once bars the prosecution of a lien, the bar is perpetual. The creditor or incumbrancer is, within the meaning of the statute, just as much such after his debt or incumbrance has merged into a title, as he is before. The'statute having once- commenced to run, in such a case, there is no authority for holding that anything short of the extinguishment of the interest of the party in whose favor it is running, will arrest it. The principle is too obvious for extended comment, that if this be so, then the purchaser of that interest occupies precisely the same position that the original creditor or lienor did. He takes the rights, and assumed the correlative obligations and duties unchanged.
Goodrich having become the owner of the equity of redemption, upon paying Grannis the amount due him on the Balcom deed of trust, was entitled to be subrogated to the rights of Grannis under that deed. . Sheldon on Subrogation, sec. 28, et seq.; 1 Jones on Mortgages (2d. ed.) 874. And a court of equity will not treat the incumbrance as merged, so long as it is the interest of Goodrich, and those claiming in his right, that.it shall be subsisting. Campbell v. Carter, 14 Ill. 286; Edgerton v. Young, 43 id. 464; Richardson v. Hockenhull, 85 id. 124. Although, too, Goodrich had a deed to the equity of redemption, he might subsequently obtain and rely upon a deed, (if for any reason it would better protect his rights,) at a sale, upon foreclosure, of White’s deed of trust.
The judgment is affirmed.
Judgment affirmed.
