Holden v. Dunn

Citations

• 144 Ill. 413
• 19 L.R.A. 481

Syllabus

<p>1. Dower — in surplus of proceeds of mortgaged premises after payment of mortgage under foreclosure sale. Where a person purchases land subject to a mortgage, which he assumes to pay and discharge, and dies after decree that the property be sold under a power of sale if the sum found to be due is not paid within the time fixed therein, but before any sale is made, the mortgaged premises will descend to his heirs, subject to the encumbrance of the decree, and his widow will be entitled to dower in any surplus of the sale money after satisfying the decree as against judgment creditors of her- husband.</p> <p>2. If, on a sale of land under a decree of foreclosure, the mortgaged premises sell for a greater sum than is necessary to satisfy the mortgage debt, the excess will represent and take the place of so much property as it is for. In such case the money in excess of the mortgage debt is the representative of the land, and will pass to the widow and children of the owner of the equity of redemption, if the sale is not made before his death, and not-to the administrator.</p> <p>3. The interest of a mortgagee is merely the right to subject the mortgaged premises to the payment of his debt, and before entry for condition broken, or purchase under sale pursuant to decree, it is not such an interest in land as may be sold on execution or mortgaged, but the mortgagor’s title is such an interest, and, being such, it is subject to dower under our statute.</p> <p>4. Same — decree of foreclosure — intervening petition of widow for dower in surplus. Where a decree was entered against a husband and wife for the foreclosure of a mortgage, which was a prior lien, and against which the wife had no right of dower, and the decree directed the payment of the proceeds in satisfaction of the mortgage and the surplus money to other' creditors of the husband, as to whom there was no release of dower, and he died before any sale, whereby the widow was entitled to dower against such othe