Biggins v. Brockman

Citations

• 63 Ill. 316

Syllabus

<p>1. Lien on real estate—when discharged by mortgagee becoming the purchaser. When a sheriff, on selling land upon execution, announces that the sale is made subject to a prior lien, and bidders so understand it, the holder of the lien, by purchasing and forfeiting his title in default of redemption, not only extinguishes his lien upon the land, but loses his remedy on the note secured by it.</p> <p>3. If, under such circumstances, he obtains the property at far less than its real value, unless the amount of his lien be added to the bid, he ought to be equitably estopped from denying that he purchased the property subject to the prior lien, and under the obligation to discharge it as devolved on other bidders.</p> <p>3. The law will charge the indebtedness upon the land, and it will be presumed to have been discharged as soon as the title becomes vested in the holder of the indebtedness, on the principle that a party may not sue himself at law or in equity.</p> <p>4. Equity may set aside a judgment upon a note which is shown to have been satisfied by such purchase by the holder.</p> <p>5. Parties—witness. A. feme covert, whose separate property is sought to be made subject to the payment of her husband’s debt, may resort to a court of equity by joining him in a bill to set aside a fraudulent judgment, and may testify in her own behalf.</p>