Bush v. Sherman

Citations

• 80 Ill. 160

Syllabus

<p>1. Mortgage—mortgagor voluntarily going within the enemy's lines. Where a mortgagor voluntarily went within the enemy’s lines, with a view to cast his lot with those who were in open rebellion against the government, the right of the mortgagee to execute the power of sale contained in the mortgage was not thereby impaired.</p> <p>2. Same—assignee may execute power of sale. The assignee of a mortgage containing a power of sale, being the legal holder of the indebtedness thereby secured, is authorized to execute the power of sale.</p> <p>3. Same—whether property is released as to mortgagor by agreement to release as to purchaser. A mortgagor sold one-haif of the mortgaged premises, and the mortgagee agreed with the mortgagor and purchaser that, after a certain payment was made on the mortgage debt, he would hold the half of the premises so sold for one-half of the balance of the mortgage debt only, with an express proviso that the mortgagor should not be released from the payment of any portion of the mortgage debt. Afterwards, the installment required to be paid was paid, as was also one-lialf of the residue of the mortgage debt, but no application was made to have the holder apply it in discharge of the mortgage indebtedness on the half so sold, and it was not so applied. After making some payments, but before the one-half of the mortgage debt was paid, the purchaser, being unable to complete his purchase, reconveyed, for a nominal consideration, to the mortgagor, the half so purchased by him, losing all benefit of what he had paid: Held, that the half so sold and reconveyed to the mortgagor was not released from the mortgage.</p> <p>4. Such a contract, although without any consideration, would be binding upon the mortgagee as to the purchaser, if he acted upon it and paid his money, but would not be as to the mortgagor; and when the property was reconveyed by the party for whose benefit the contract was made, to the mortgagor, who, by the express terms of the co