Dodds v. Snyder

Citations

• 44 Ill. 53

Syllabus

<p>1. Mortgage—on two funds. Where a person takes a mortgage on property a portion of which is incumbered at the time and a portion is not, he thereby acquires the right to satisfy his debt out of the portion not previously incumbered. And this right passes to an assignee of the debt and security. And on a foreclosure he could be compelled to resort for satisfaction, first, to lands upon which the debtor did not reside.</p> <p>2. Same—homestead—subsequent ineumbrance. A person taking a deed of trust on the lot of ground occupied as a homestead by the debtor and also on a tract of land not so situated may resort, for satisfaction of his debt, first, to the land; nor is his right impaired by the debtor subsequently giving a mortgage on the land. The law will not compel the first incumbrancer to advance a thousand dollars to reach the surplus of the homestead before resorting to the land for satisfaction.</p> <p>3. Incumbrances—different funds. The law does not require a person having a lien on two funds, one of which is subject to a lien or incumbrance prior to his, and the other a lien subsequent to his, to remove the incumbrance prior to his, to enable the person holding the lien subsequent to his on the other fund, to obtain satisfaction. If a creditor having a lien on two funds, one of which was a homestead which is indivisible, and the other not subject to a prior lien, the court could not compel him to advance one thousand dollars, and sell the surplus of the homestead; to do so would be to make a new contract.</p> <p>4. Same—equity of redemption. A person taking a second mortgage on real estate, only acquires a lien on the equity of redemption, and when such mortgage is foreclosed and the property sold, the purchaser only obtains that right. And it will be presumed that such a purchaser regulates his bid with reference to the prior incumbrance, and only gave what it was worth subject to the prior lien.</p>