Caudle v. Murphy

Citations

• 89 Ill. 352

Syllabus

<p>1. Subrogation—under deed of trust. Where a third person pays a debt which is secured by mortgage, at the request of the mortgagor, but takes the note and mortgage as a security for the money thus advanced, he will, in equity, be entitled to be subrogated to the rights of the original creditor, and to have the property sold under the power in the mortgage or trust deed, in the same manner the mortgagee might have done in the absence of payment to him.</p> <p>2. Deed of trust—setting aside sale under, on ground, of payment. Where a husband, after giving a deed of trust, conveys the property to another in trust for his wife, and makes an arrangement with a brother for the payment of the debt, when he absconds to avoid a criminal prosecution, and the property is afterwards sold by the trustee, and the wife receives the surplus of the proceeds of the sale, but some seven years afterwards files her bill to have the sale set aside on the ground of payment of the debt by the brother of her husband before the sale, alleging that she did not know of the payment until a short time before filing her bill, the proof must be clear that the debt was paid and the lien extinguished, and exclude every reasonable probability that the note and trust deed were taken by the brother at the time as security for the money advanced by him, in order to justify the court in setting aside the sale as to an innocent purchaser, after such a lapse of time.</p>