Handly v. Munsell

Citations

• 109 Ill. 362

Syllabus

<p>1. Mortgages—purchaser of equity of redemption—of his rights as against the mortgagee. On bill to foreclose a mortgage, against the mortgagor and another who claimed to have purchased of the mortgagor, the latter filed a cross-bill against the mortgagee, setting up his purchase, possession, and payment of the purchase money, and the refusal of the mortgagee to convey the premises, and praying that he be compelled to make the conveyance, and that he, the purchaser, be allowed to pay the mortgage debt, and have the mortgage assigned to him by the mortgagee. The cross-bill did not state that the mortgagee ever refused to accept the amount due under the mortgage, and release the mortgage: Held, that as to the mortgagee, a demurrer was properly sustained as to the cross-bill, he being under no obligation to assign the mortgage.</p> <p>2. In such case the complainant in the cross-bill could have no standing in court, unless he brought into court the amount due the complainant in the original bill. If that had been done, and no relief had been asked except as to his co-defendant, it might be that the court would have kept the mortgage and the debt thereby secured, alive, for his protection, until he could have litigated the matter in contention between himself and his co-defendant. In this case the decree dismissing the cross-bill was modified so as to make the dismissal without prejudice, at the costs of the complainant in the cross-bill.</p> <p>3. The most that a purchaser of a mortgagor’s equity of redemption can require of the mortgagee is, that he accept the amount due on the mortgage, and release it of record. The mortgagee is not bound to accept what is due him, and assign his notes and mortgage to the person offering to pay him.</p> <p>4. A mortgagee seeking to foreclose his mortgage, having no interest as to litigation between the defendants, on cross-bill by one of them for the specific performance of an alleged contract for the sale of the equity of redemptio