Alexander M. Wright Et Ux. v. Langley
| Decision Date | 31 January 1865 |
| Parties | ALEXANDER M. WRIGHT et ux.v.JAMES LANGLEY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
ERROR to Circuit Court of Morgan County.
Foreclosure bill filed in the court below by defendant in error against plaintiffs in error.
The case is sufficiently stated in the opinion.
Morrison & Epler, for plaintiffs in error.
D. A. Smith and H. E. Dummer, for defendant in error.
It appears from the record in this case, that Mrs. Wright joined with her husband in the execution of the mortgage described in the bill, and was made a party defendant. It is objected that the decree is erroneous in requiring her to pay the money found to be due on the mortgage. The portion of the decree which is supposed to be erroneous in this respect is this: “And the court being satisfied, by computation, that there is due the complainant in this case the sum of $3,645.36, including taxes of '60, '61, '62, paid by complainant; it is ordered, adjudged and decreed by the court, that the defendants, to and for his use, pay to the master in chancery of this county, in ten days from this date, said sum of money, with the costs of this suit, and that in default thereof the said defendants be foreclosed of and from all equity of redemption of the mortgaged premises, other than the right of redemption under the statute from any sale that may be made in this case.” The decree then provides for a sale of the premises, and the manner in which it shall be made.
The only reason why the wife of a mortgagor, who joins in the execution of such an instrument, should be made a party, is to bar the equity of redemption in her right of dower, or to give her the opportunity, before it is foreclosed, to redeem and prevent its sale. It is error to render a money decree against her on the foreclosure. If this decree is against Mrs. Wright jointly with her husband for the payment of the decree, then it is erroneous. It nowhere finds that she is indebted, or owes to defendant in error any sum of money. It only finds the sum due to him on the mortgage. It does not declare that he shall recover of plaintiffs in error the money found to be due him on the mortgage. Nor does it award execution for its collection. Had it been intended as a money decree against the plaintiffs in error, some of these things would have appeared in the decree. We may safely conclnde, therefore, that it was only intended as a decree for the sale of the mortgaged premises, but giving plaintiffs in error the right to defeat the sale, by paying the money within ten days. Being such, a suit could not be maintained against Mrs. Wright on the decree, and not being liable for the payment of the decree, it is not, we think,...
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