Strang v. Allen

• Decision Date: 30 April 1867
• Citation: 44 Ill. 428,1867 WL 5177
• Parties: SAMUEL A. STRANG et al.v.WILLIAM ALLEN.
• Court: Illinois Supreme Court

44 Ill. 428

1867 WL 5177 (Ill.)

SAMUEL A. STRANG et al.

v.WILLIAM ALLEN.

Supreme Court of Illinois.

April Term, 1867.

WRIT OF ERROR to the Circuit Court of Rock Island county; the Hon. IRA O. WILKINSON, Judge, presiding.

This was a suit in chancery, brought in the court below, by William Allen against Samuel A. Strang, and others, in which the complainant sought to redeem from a mortgage.

The facts are fully stated in the opinion of the court.

Mr. E. S. SMITH, for the plaintiffs in error.

Mr. CHARLES M. OSBORN, for the defendant in error. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

It appears, from the record in this case, that Lathrop and wife conveyed the property in controversy, on the 19th day of July, 1856, to George E. Hoyt and Amos Avery, by deed, with covenants of warranty.

Three days afterward, they conveyed, by way of mortgage, to Jeremiah Chamberlain, to secure the payment of $698.50, with interest, due one year after date.

On the 15th of April following, Hoyt and Avery executed a trust-deed on the same land, to Charles M. Osborn, to secure a debt they owed to one Richardson. This deed, by its terms, was subject to the mortgage to Chamberlain, and provided, that, in case of default of the payment of the debt to Richardson, Osborn should make sale of Hoyt and Avery's equity of redemption, as attorney of grantors, and should execute a deed to the purchaser, in the name of the grantors, or in his own name, rendering the surplus money, if any, to the grantors.

Chamberlain, on the 24th of June, 1858, filed his bill in the Rock Island Circuit Court to foreclose his mortgage. He only made Hoyt and Avery and their wives parties to the bill; and in September following a decree of foreclosure was rendered against Hoyt and Avery for the sum of $789.90, the amount of his debt, and the decree ordered the payment thereof with interest and costs within thirty days, and awarding a special execution to the sheriff of the county for a sale of the mortgaged premises. An execution issued on the decree, on the 5th of November, 1858, directed to the sheriff. On the 27th of that month the property was sold by him for the sum of $832.69, and a certificate of purchase was given Chamberlain who had become the purchaser, which was duly recorded.

Afterward, on the 13th day of December, 1858, Osborn made sale of the property under the trust-deed, to Allen, and executed to him a deed at his bid of $1,200. It was executed in the name of Osborn, and by its terms it was subject to the Chamberlain mortgage, and all legal claims thereunder.

On the 22d of February, 1859, Chamberlain assigned his certificate of purchase to Howard and he to Lee.

On the 22d of February, 1860, plaintiffs in error redeemed from the sale to Chamberlain as judgment creditors of Hoyt and Avery. The judgments under which the redemption was made bear date, respectively, June and September, 1857.

On the 24th of March, 1860, the sheriff executed a deed to plaintiffs in error under the sale on their redemption.

Allen, on the 12th of July, 1864, filed his bill in the Rock Island Circuit Court to redeem from the mortgage of Chamberlain, and Hoyt and Avery, their wives, and plaintiffs in error, were made defendants to the bill.

Plaintiffs in error answered, but the bill was taken as confessed as to the other defendants. On the 23d of May, 1866, on a hearing of the cause, the court below entered a decree allowing Allen to redeem from the Chamberlain mortgage, and that plaintiffs in error, who had taken possession under their sheriff's deed, account for rents and profits, and that they be applied on the redemption money paid in redeeming from the sale under the foreclosure of Chamberlain's mortgage, and that Allen pay the balance ($105.90) into court, and plaintiffs in error to release all claims to the land under the sheriff's deed.

To reverse this decree, the cause is brought to this court on a writ of error. The mortgage to Chamberlain, being the first incumbrance, and duly recorded, was entitled to preference over all other liens. But the deed of trust executed to Osborn to secure Richardson's debt, became a lien subject to Chamberlain's mortgage. It was so both by priority and by the terms of the deed of trust itself. It conveyed the equity of redemption retained by Hoyt and Avery when they executed the mortgage to Chamberlain, and Osborn had power to sell and convey that equity to any person becoming a purchaser at a sale to satisfy Richardson's debt. And this deed of trust was prior in date to the judgments under which plaintiffs in error redeemed from the sale on Chamberlain's foreclosure, and was consequently next in the order of liens upon the premises. This, then, left those jugments the last in the series of liens.

When Chamberlain foreclosed his mortgage the deed of trust to Osborn was a valid subsisting lien, junior to the mortgage, and the parties holding that lien, to have been affected by the decree, should have been made parties to the proceeding to foreclose, and, having failed to make them such, their lien was unaffected by that decree and the sale by the sheriff. Their right of redemption still continued unaffected by that proceeding. No principle of law is better settled or more fully recognized than parties holding liens on, or interest in, property, are not affected in their rights by judicial proceedings unless they are either parties or privies. It is equally well settled, that the purchaser at such a sale takes the property subject to all liens of record, and of which he is chargeable with notice, unless their rights are cut off by the judicial proceeding under which he purchased. It then follows, that, as Richardson's lien was unaffected by the foreclosure of Chamberlain's mortgage and sale of the premises, the assignees of the certificate of purchase, and those redeeming from that sale, could claim no higher or better right than Chamberlain had by his purchase, and, the deed of trust to Osborn being on record when the foreclosure, sheriff's sale and redemption took place, the purchaser and the judgment creditors redeeming from the sale took it subject to be redeemed by those holding under the Osborn deed of trust; and, when Osborn sold, his grantee became invested with the same right...