Hards v. Burton

Citations

• 79 Ill. 504

Syllabus

<p>1. Foreclosure of mortgage—defendant desiring an accounting, must present the matter to the attention of the court. On a bill to foreclose a mortgage, if the mortgagor desires an account taken of the amount of profits for which the mortgagee should account, to be deducted from the mortgage debt, it is his duty, by his solicitor, to present the matter for the action of the court, and if he fails to do so, it is not the duty of the court to take action in the matter and make the claim for him.</p> <p>3. Same—rents and profits treated as payment, when received by mortgagee. Rents and profits received by the mortgagee from the mortgaged premises are in the nature of payments on the mortgage debt, and when, on a bill to foreclose, the case is referred to the master to ascertain and report the sum due on the mortgage, he should hear all evidence the parties choose to offer in relation to rents and profits received by the mortgagee, and report his finding to the court; but if the mortgagor does not choose to offer such evidence before the master, he has no right to complain of the decree because no account of rents and profits is taken.</p> <p>3. Partition of mortgaged premises—effect of, on rights of mortgagee. An arrangement between two or more mortgagors, by which a partition of the mortgaged premises is made, and one of them assumes to pay off the mortgage, and to indemnify the other against the same so far as it covers the property taken by him in the partition, whilst it would be binding between themselves, could not affect the right of the mortgagee to foreclose the mortgage as to such property, nor would a person purchasing the mortgage debt, after such arrangement was made and with full knowledge of all the facts, be bound by it.</p> <p>4. Marshalling assets—on foreclosure. Where joint owmers of property, subject to a mortgage executed by themselves, make a partition thereof, and one of them undertakes and assumes to pay off the incumbrances on the whole of the