Cottingham v. Springer

Citations

• 88 Ill. 90

Syllabus

<p>1. Execution—mortgagor’s interest may be sold under execution in favor of mortgagee. In tins State, the mortgagor’s equity of redemption in the mortgaged premises may be sold on execution issued on a judgment at law, in favor of the mortgagee, for the mortgage debt. At common law, the rule seems to have been different. By that system, the, equity of redemption could be cut off only by foreclosure in equity.</p> <p>2. Same—when sale of mortgagor’s interest operates as a foreclosure. A sale under an execution, on a judgment for the debt secured by a mortgage, operates as a foreclosure of the mortgage, with the same rights of redemption to the debtor and creditors as on a sale under a decree of foreclosure. By such sale and sheriff’s deed to the mortgagee, he acquires the equity of redemption, which, united with his estate under the mortgage, gives him the absolute title.</p> <p>3. Same—issued, for first time, after one year. If a judgment creditor sue out an execution on his judgment, for the first time, after the expiration of one year, and sell, the sale will be good and the title pass, unless the judgment debtor takes timely steps to set the sale aside. His failing to do so is an implied admission that the judgment was not satisfied, and the sale was rightfully made.* </p> <p>4. Sheriff’s deed—made over seven years after judgment became a lien. A sheriff’s deed for land sold under execution, made eight years and three months after the judgment became a lien on the land, is not void as against the heirs of the judgment debtor, who take as mere volunteers. This case is to be distinguished from those of Rucker v. Dooley, 49 Ill. 377, and Hannan v. Larned, 58 id. 167, holding such deed inoperative to pass the title as against bona fide purchasers from the judgment debtor. It was not said, nor intended to be said, in those cases, that a deed made after the expiration of seven years would be void as to the judgment debtor, or those claiming under him as volunteers.</p