Fitts v. Davis

Citations

• 42 Ill. 391

Syllabus

<p>1. Mobtgage — Ken—notice. Where a party sells real estate, and takes a mortgage on the premises to secure the purchase money, and it is recorded, it becomes a lien and notice of the fact; and a third person recovering a judgment against the mortgagor, in the Circuit Court, acquires a lien on the premises, subject to the mortgage, which is entitled to priority in satisfaction.</p> <p>2. Same—reeomeyomce by mortgagor. Where a mortgagor, under such circumstances, reconveys the premises to the mortgagee and thus cancels the mortgage debt, the lien of the judgment creditor is not thereby destroyed, but he may, after selling under his judgment, and acquiring title to the equity of redemption, redeem the premises by paying the mortgage debt and interest. And when the judgment debtor has died, his administrator occupies the same relation to the premises.</p> <p>8. Same — equity of redemption. A mortgagee by receiving a conveyance of the premises from the mortgagor does not thereby lose his lien, nor is it postponed to a junior incumbrance by judgment. If the judgment creditor or his representatives, by a sale under the judgment, acquires the equity of redemption, it remains subject to the payment of the mortgage debt,</p> <p>4. Judgment — Ken—execution. Where a plaintiff recovers a judgment and dies, and no execution is issued for more than a year, the lien is lost as against a mortgagor or other person purchasing the equity of redemption. The lien of a judgment is not lost by the death of a plaintiff, but, to continue it beyond a year from the last day of the term at which it was rendered, the administrator should file a copy of his letters in the clerk’s office, and sue out execution, as authorized by the statute. A sale on an execution, first sued out after the expiration of the year, confers no title as against the mortgagee.</p> <p>5. ShebiWs deed—cloud on title. Such a sheriff’s deed, although incompetent to convey title, is such a cloud upon the title of the owner