Niles v. Harmon
| Decision Date | 30 September 1875 |
| Citation | 1875 WL 8769,80 Ill. 396 |
| Parties | A. MOSELY NILES et al.v.JACOB HARMON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Iroquois county; the Hon. NATHANIEL J. PILLSBURY, Judge, presiding. Mr. G. S. ELDRIDGE, for the plaintiffs in error.
Messrs. DOYLE & KING, for the defendant in error D. H. Virden.
Messrs. HOLLAND & AYRES, for the defendant in error Smith Frame.Messrs. BLADES, KAY & EVANS, for the defendant in error Harmon.Mr. M. B. WRIGHT, for the defendant in error Kussell
In 1866, one Smith Frame was the owner of section 23, and the north-west quarter of section 25, all in town 25 N., range 10 E., in Iroquois county, and during the year conveyed the same to David H. Virden, taking a mortgage thereon back from Virden to secure the payment of the purchase money.
Afterward, Virden conveyed this section and quarter section in different parcels, and at different times, in the following manner, namely:
On July 27, 1868, to Peter Kussell, all that part of said section 23 lying west of the Illinois Central railroad, taking a mortgage back on the land, to secure the payment of the purchase money.
On August 3, 1868, to E. D. Hartshorn, the said north-west quarter of section 25, taking mortgage thereon back to secure the payment of the purchase money.
On September 5, 1868, to A. M. Niles, all that portion of said section 23 lying east of the Illinois Central railroad, taking mortgage back to secure the payment of the purchase money.
On April 28, 1874, Jacob Harmon filed this bill in chancery to foreclose the mortgage given by Peter Kussell to David H. Virden, which was to secure the payment of three promissory notes, from Kussell to Virden, for the purchase money, the last one of which, the only one remaining unpaid, was for $3460, and due March 1, 1870, it having been assigned by Virden to Harmon. Frame, David H. Virden, Kussel, Hartshorn, Niles, and Anderson Virden, administrator of Stratton Virden, deceased, were made parties defendant--the notes of Hartshorn and Niles, which their mortgages were given to secure, having been assigned to Stratton Virden in his lifetime.
To the bill of Harmon, all of the defendants answered, except Niles and Hartshorn, the plaintiffs in error, who failed to answer, and the bill and cross-bills were taken as confessed against them. The several defendants who answered filed cross-bills, and the three Frame, Hartshorn and Niles mortgages were asked to be foreclosed. Harmon, Kussell and David H. Virden insisted that the lands last sold to Hartshorn and Niles should be first subjected to the payment of the Frame mortgage, before the land first sold to Kussell. Anderson Virden, the holder of the two notes secured by the Hartshorn and Niles mortgages, insisted, by his answer and cross-bill, that the land sold to Kussell should be first subjected to the payment of the Frame mortgage, before the lands sold to Hartshorn and Niles.
The court below, on final hearing, found there to be due on the Frame mortgage, $3632.18; on the Kussell mortgage, which the original bill was filed to foreclose, $4865.18; on the Hartshorn mortgage, $979.88; on the Niles mortgage, $1868.62; that all the lands were liable to pay the amount due on the Frame mortgage, and that they be sold for payment thereof in the following order: First, the land of Niles; next, the land of Hartshorn; and last, the land of Kussell. Niles and Hartshorn bring this writ of error, and make the point that the land of Kussell should have first been sold for the satisfaction of the Frame mortgage.
It is the general rule of equity, in the case of successive grantees of different portions of an entire tract of land upon which is a mortgage before given by the grantor, that, upon foreclosure of the prior mortgage, such granted portions should be sold in the inverse order in which they were granted, so that the land of the last grantee shall be subject to be first sold. This rule was applied here, by the court below. The question is, whether it was correctly applied, under the facts of this case. Had Kussell have paid the purchase money for his land, there would be no doubt that the general rule should be applied. In that case, it would be a plain injury to Kussel to allow his land to be sold first.
Where the owner of land mortgaged conveys a portion of it with warranty, it is his duty to protect the grantee against the mortgage; and, in foreclosing the mortgage, it is just and right that it should be satisfied, if may be, out of the portion of the land which remains in the mortgagor, and that it should be first charged with the debt. This protects the interest of the purchaser of the part, and makes the mortgagor but pay his own debt out of his own land. It saves such purchaser from loss and injury, and does no harm to any one else. And should the mortgagor convey the portion remaining in him to a second purchaser, he takes the land as it was in the hands of the mortgagor, subject to the equity of being first charged with the payment of the mortgage debt, and it is thus equitable that the portion of the land held by the second purchaser should first be sold for the satisfaction of the debt, before resort is had to the land of the first purchaser. But in this case the first purchaser, Kussell, had not paid the purchase money for the portion of the land he purchased, and had given a mortgage back to secure its payment, the amount found due under which is $4865.18.
It is said by counsel for plaintiffs in error that it is just and equitable that Kussell should pay this sum, and that...
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