Bennett v. Matson

Citations

• 41 Ill. 332

Syllabus

<p>1. Statute of frauds —performance of a parol contract within a year. At the time of a sale under a decree of foreclosure obtained by a prior mortgagee, of two parcels of land, such mortgagee and a junior mortgagee of the same premises, who was a party to the proceeding for foreclosure, made a parol agreement that the prior mortgagee should bid the amount then due Mm on one of the parcels of land, and if the sale should not be redeemed from, the junior mortgagee was to have the other parcel discharged from the lien which had been reserved in the decree in favor of the prior mortgagee for a portion of his debt wMch was not yet due, the junior mortgagee to pay the costs of the suit for foreclosure, and one half of the solicitor’s fee therein. Within a year from the time this agreement was made, the sale took place, the prior mortgagee bidding the whole amount due Mm upon one parcel, as agreed, and the junior mortgagee becoming the purchaser of the other parcel for the costs. It was held, that, as between the parties, tMs was a consummation of the agreement witMn a year, and therefore it was not witMn the statute of frauds, notwithstanding it might be defeated by a redemption thereafter to he had.</p> <p>2. Notice — what circumstances will put one upon inquiry as to another's equities. A purchaser of a decree of foreclosure from a prior mortgagee, in whose favor it was rendered, is put upon inquiry as to the nature and extent of a junior mortgagee’s equities arising out of a parol agreement previously made between the two mortgagees, by the fact, that such junior mortgagee was a party to the decree.</p> <p>3. Purchaser under a decree of foreclosure — when entitled to possession. A purchaser at a sale, under a decree of foreclosure, is not entitled to possession, under our statute allowing redemption from such a sale, until a deed has been executed to him by the officer selling; and a decree of foreclosure which provides for putting the purchaser in possession before