International Bank v. Wilshire

Citations

• 108 Ill. 143
• 1883 Ill. LEXIS 65

Syllabus

<p>1. Mortgage—assignment—conveyance in fee by mortgagor to mortgagee-effect as to prior assignee of the debt secured—whether there is a merger. A conveyance of real estate by a mortgagor to the mortgagee after the assignment of the notes secured and the mortgage to another, taking the same in good faith and for value, without the knowledge or assent of such assignee, will not, as to him, operate as a merger of the mortgage, or affect his rights; and after the recording of the assignment of the mortgage, a purchaser from the mortgagee after the mortgagor’s release of his equity of redemption will take subject to the equitable rights of the assignee.</p> <p>2. A mortgagee, after the release to him of the mortgagor’s equity of redemption, may keep the mortgage alive in favor of one to whom he had pledged the mortgage debt before the release of the equity of redemption, and he may also obtain future advances on such assignment, which will be evidence of an intention to keep the mortgage alive for the protection of his assignee; and in such case no merger will take place.</p> <p>3. A conveyance of a mortgagor’s equity of redemption to the mortgagee, after the latter has parted with the mortgage and notes thereby secured, by assignment to a bona fide purchaser or creditor as a security, can not, in equity, be. treated as a merger of the mortgage estate in the fee, for the reason that the original mortgagee, in equity, at the time of such conveyance had ceased to be such mortgagee, so that the two titles could not unite in the same person. If such conveyance should be made to the assignee of the mortgage, there would be greater plausibility in claiming a merger; but even then, if equity had required it, to promote justice, it would not have been treated as a merger.</p> <p>4. Chancery—affirmative relief on answer—what so regarded. On bill to enjoin the sale of real estate on execution issued on a judgment in a proceeding by scire facias to foreclose a mortgage, the court,