Kirby v. Runals

Citations

• 140 Ill. 289
• 29 N.E. 697

Syllabus

<p>1. Foreclosure—changing decree for distribution—effect on decree for sale of land—interest of owner of equity of redemption in distribution. A decree for the foreclosure of a mortgage found the sum due under the mortgage, and directed a sale of the mortgaged premises, and, as between the complainant and one claiming as his pledgee, that the sum due the pledgee should be paid to him. Afterward the receiver of the complainant intervened, and on his motion the order for payment to the pledgee was set aside and the distribution of the purchase money was reserved for future determination: Held, that the decree for the sale of the land was not thereby affected, and that the owners of the equity of redemption had no interest in the distribution of purchase money, as between the complainant and the other parties.</p> <p>2. Same—whether decree is final. A decree foreclosing a mortgage and ordering a sale of the mortgaged premises is a final decree, even though the master is ordered to make a report of the sale, and bring the money into court for the further order of the court as to whom the purchase money shall be paid. Such a decree settles all questions between 'the holder of the mortgage and the owner of the equity of redemption.</p> <p>3. Same—dismissing suit at subsequent term. The court has no power, at a subsequent term, to enter an order dismissing the suit, which will have the effect to set aside and vacate a final decree of foreclosure and sale, and a sale may be had notwithstanding such order of dismissal.</p> <p>4. Same—decree and execution for deficiency. On bill to foreclose a mortgage a decree may be rendered against a defendant personally liable for the debt, if there be personal service, for any balance of money due over and above the proceeds of sale, and an execution may issue for such balance, the same as when the decree is solely for the-payment of money; and such decree maybe rendered conditionally at the time of foreclosure, or after the sale and as