Harbison v. Houghton

Citations

• 41 Ill. 522

Syllabus

<p>1. Mortgage—what constitutes. After a decree of foreclosure of a mortgage given to secure a loan of money, and a sale thereunder at which the mortgagee became the purchaser, the latter waived the payment of the money in redemption from the sale, and, before the time of redemption expired, under an understanding with the mortgagor to extend the time for the payment of the money, and to still hold the land as security, the mortgagee took a quitclaim deed therefor from the mortgagor, and gave him a bond for a reconveyance upon the payment at a certain time, beyond the statutory time for redemption, of a sum which was made up of the amount found due by the decree of foreclosure, with a heavy usurious interest, the bond providing that the time of payment of the money should be of the essence of that contract. Held, that the quitclaim deed and bond for reconveyance constituted a new mortgage, and not a sale and resale.</p> <p>2. Same — effect of the new arrangement upon the rights of the mortgagee as a purchaser under the foreclosure. The arrangement by which the mortgagee took the quitclaim deed from the mortgagor, and gave him back his bond for a reconveyance, canceled the certificate of purchase which the former had received at the sale on the decree of foreclosure, his equitable title obtained thereby being merged in the legal title acquired by the deed, and he had then no right to a deed from the master, under the foreclosure.</p> <p>3. Same — right of redemption of the mortgagor. The mortgagee having obtained a deed from the master under the sale on foreclosure, after the statutory time for redemption therefrom had expired, notwithstanding the new arrangement, he commenced his action of ejectment against the mortgagor, to recover the premises ; and on hill filed by the latter to enjoin that suit, and to redeem, although the terms of payment as prescribed in the bond for reconveyance had not been complied with, it was held, as the new transaction was a mortgage, a