Dupuy v. Gibson
| Decision Date | 30 November 1864 |
| Parties | WILLIAM L. DUPUYv.ISAAC GIBSON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Circuit Court of Richland County.
The case is sufficiently stated in the opinion.
Tanner & Casey, for appelant.
J. G. Bowman, for appellees.
This was a bill in equity, filed to foreclose a chattel mortgage. It makes the mortgagor and subsequent incumbrancers parties. It prays a foreclosure and sale of the property. A demurrer was filed to the bill, which was overruled by the court. Afterwards a motion was entered to dismiss the bill, for a want of equity, when complainant entered a cross-motion for leave to amend the bill. The latter motion was overruled, and the former allowed, and the bill was dismissed at complainant's costs. We are aware of no practice, either in Great Britain or this country, which sanctions the practice of dismissing a bill on motion. If it is defective, it should be reached by demurrer. Whilst this may not be ground for a reversal, it is by no means the practice of courts of equity.
But the main question in the case is, whether a bill can be entertained to foreclose a mortgage on personal property. There are numerous cases that hold a bill may be filed to redeem from a pledge or such a mortgage. And such a bill may be maintained even after the condition has been forfeited, if exhibited in a reasonable time. Brown v. Lispcomb, 9 Port. (Ala.), 475: Story on Bailment, sec. 287. Judge Story, in his work on Equity Jurisprudence, vol. 2, sec. 1031, says, in mortgages of personal property, although the condition has not been performed, there exists, as in mortgages of land, an equity of redemption, which the mortgagor may assert if he brings his bill to redeem in a reasonable time. He also says there is a difference between mortgages of land and mortgages of personal property, in regard to the rights of the mortgagee after a breach of the condition. In the latter case, there is no necessity to bring a bill to foreclose; but the mortgagee may, upon due notice, sell the property, which will vest the title in the purchaser.
It will be observed, that the author only says that it is unnecessary to file a bill to foreclose such a mortgage. He does not say that a bill will not be sustained for that purpose. Whilst it may be that a bill should not be sustained in ordinary cases, where the mortgagee may foreclose by sale without injury to the rights of any person, yet when there are successive liens and incumbrances, it would be eminently proper and promotive of justice, that it should be foreclosed in equity. In such a case, accounts of all the parties in interest could be...
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