King v. Cushman

Citations

• 41 Ill. 31

Syllabus

<p>1. Sale of a mortgagers interest in land, unde/r execration—what will pass thereby. Under the statute which declares that all interest of a judgment debtor, as mortgagee or mortgagor of land, shall be subject to sale on execution, no lien attaches to the notes secured by the mortgage held by such mortgagee, nor will the notes pass to the purchaser under a sale of the mortgagee’s interest in the premises on execution.</p> <p>2. Execution sales—whether title passes by a sale on a day different from that freed in the notice. Where land is sold on execution, on a day prior to that specified in the notice of the sale, no title will pass to the purchaser at the sale, or to any subsequent grantee, if they have notice of the irregularity.</p> <p>3. Notice — who is chargeable with notice. If the purchaser in such case is the plaintiff in the execution, he is chargeable with notice of such irregularity.</p> <p>4. Trustee — buying in an outstanding title. A court of equity, independent of any agreement, will consider money advanced by a trustee, to purchase in an outstanding title, as an advance for the benefit of his cestui que trust, and not for his own use, giving him a lien on the property, until he is reimbursed the advancement.</p> <p>5. Usury—when mailing asa defense. Where a party loans money to another at a usurious rate of interest, for the purpose of enabling the borrower to pay another debt which he owes, and for greater security to the lender the note and mortgage given to secure the prior debt are transferred to him, he cannot evade the effect of the usury laws upon the contract of loan which is tainted with usury, although the securities which were thus transferred to him were free from such taint.</p>