Hughes & McCart v. Frisby

Citations

• 81 Ill. 188

Syllabus

<p>1. Evidence—practice in chancery as to rtfecting. In chancery proceedings the presumption is, that the court hears and considers all the proper evidence, and decides on the proper and rejects the improper evidence, and when taken to this court it is considered in the same manner, and a decree will not he reversed if sustained by proper evidence.</p> <p>2. Parol evidence—to show sale under decree was made subject to mortgage. Where land is sold under a decree of foreclosure which directs the sale to be subject to the mortgage, as to the notes not due, and the master’s report of the sale is silent as to the fact, parol testimony is admissible to show that the master announced the sale as subject to the lien of the mortgage.</p> <p>3. Mortgage—whether sale on-foreclosure destroys lien as to debt not due. Where a decree of foreclosure directs a sale subject to the mortgage for the unforeclosed part of the debt, and the sale is so made under an announcement to that effect, the failure of the master to state that fact in liis certificate of purchase and report of sale, and its confirmation, will not affect or modify the original decree and waive or release the lien reserved.</p> <p>4. ' The law does not require that the notice of a sale under a decree of foreclosure should state it is subject to any further lien, when the decree makes it so, but it will be sufficient for the master to so announce when he offers the property, nor is it necessary that the certificate of purchase should show that fact.</p> <p>5. Same—when sale extinguishes entire mortgage. Where a foreclosure of a mortgage is had before the whole debt is due, and the decree directs a sale for debt due, subject to the lien for the part not due, if the mortgagee, the holder of the entire debt, purchases and receives a deed for the premises, it will be a satisfaction of the whole debt, but if redemption is made from the purchaser by the mortgagor, or a judgment creditor of the mortgagor, the debt not due at