Boone v. Robert

Citations

• 129 Ill. 466
• 5 L.R.A. 276

Syllabus

<p>Marshaling securities—where one creditor has a lien upon two funds, and another upon only one of them. Where there are two creditol’s standing in equal equity, one of whom has security on two funds, and the other only upon one of them, in equity the former will be required to proceed primarily against the fund upon which the latter has no claim.</p> <p>2. So a creditor having a judgment lien upon several parcels of property, part of which has been taken in satisfaction of a junior judgment, or purchased bona fide from the judgment debtor, leaving a portion free from junior incumbrance or unsold, the prior judgment creditor must first resort to the latter fund for satisfaction.</p> <p>3. Same—the rule limited to creditors of a common debtor. But this principle does not apply when a creditor has a lien upon two funds belonging to two separate debtors, and a creditor of one of the debtors-has a lien upon one of the funds. Creditors of a common debtor alone-can invoke this right, and it has no application as between creditor and debtor. Nor will the rule be applied to the injury of the prior-creditor.</p> <p>4. Same—successive mortgages, or subsequent mortgage and sale— vn/oerse order of alienation. In case of successive mortgages, or a mortgage and a subsequent sale on execution, or otherwise, of a portion of the mortgaged premises, the subsequent mortgagee or purchaser may insist that the portion of the estate retained by the mortgagor shall first be subject to the mortgage debt, and that the interest of subsequent mortgagees or purchasers shall be liable therefor in the inverse-order of alienation.</p> <p>5. So where a part of the mortgagor’s equity of redemption has passed' from him by sale under execution, the mortgagee’s right of foreclosure-will be limited to such amount as may equitably be enforced againstr. such parcel, though the mortgagor may be liable for a larger sum.</p> <p>6. The equitable rule of marshaling securities, whereby lands mortgaged are requ