Allen v. Powell

Citations

• 108 Ill. 584
• 1884 Ill. LEXIS 1518

Syllabus

<p>1. Decree—not binding on one not made a party. A surety'on an appeal bond was compelled to pay the amount of a decree of foreclosure, from which the appeal was taken to this court, and on such payment took an assignment of the mortgage debt and the decree of foreclosure, and afterward other parties to the record having mechanic’s liens allowed them and made a lien on the mortgaged premises, filed a supplemental bill seeking to have their demands given priority over the mortgage debt, and obtained a decree to that effect. It was held, the assignee of the mortgage debt and decree, not having been made a party to the decree under the supplemental bill, might maintain a bill to have such decree, set aside and vacated.</p> <p>2. Surety—right to purchase subject matter to which his suretyship relates, as an indemnity. Where a corporation appealed from a decree foreclosing a mortgage given by it, and the decree was affirmed, whereby the surety on the appeal bond became personally liable to pay the amount of the decree and costs, it was held, that the surety had the light to purchase the decree and hold the same for his indemnity, and that in such case the decree will not be discharged, but will be kept alive, according to the intention of the parties, for the surety’s protection. The law does not forbid such a purchase.</p> <p>3. Assignment—carries with it remedies of assignor. The assignment of a decree for the payment of money, to one secondarily liable for its payment, for his indemnity, is no discharge, but leaves the decree still owing, and the assignment carries with it the same right to collect or enforce the same as the assignor may have had.</p>