Finley v. Thayer

Citations

• 42 Ill. 350

Syllabus

<p>1. Execution—sale of equity of redemption. The mortgagor’s equity of redemption in real estate may be levied upon and sold under execution; and the purchaser, if the property is not redeemed, succeeds to all the rights of the mortgagor in the premises, but to nothing more. He acquires the property subject to all burdens upon it, and is presumed to bid with reference to the incumbrances upon the property, and subject to which he purchases, and the amount thus bid becomes an unconditional satisfaction of his execution to that extent. Such a purchase by plaintiff in execution for the amount of his debt is a satisfaction of his judgment, as though the purchase had been made and the money paid by a stranger.</p> <p>2. Same. The rule of caveat emptor applies to such a purchase. There is no implied warranty on the part of the debtor, that a purchaser shall acquire a fee simple, free from incumbrance, or that he will redeem. Nor is he under any moral or legal obligation to redeem. And if he makes no promise to do so, or other representations to induce the purchase, he has committed no wrong. Having purchased with notice, and having acquired all he had a right to expect without redeeming, it would be unjust to require the debtor to sustain the loss occasioned by^the laches of the plaintiff in execution.</p> <p>8. Judgment—reversal — its effect. A plaintiff in execution by the purchase of an equity of redemption in real estate, in satisfaction of his judgment, thereby discharges his demand to that extent against the debtor; by the purchase he declares that it is worth to him the amount of his bid, and failing to redeem from the mortgage, he loses the equity and deprives the debtor of its benefit. Nor does a reversal of his judgment, under which a purchase was made, revive his debt, and if suit is again brought on the notes upon which the judgment was recovered, the debtor may interpose the satisfaction by purchasing the equity of redemption, as a complete defense to the ex