Morgan v. Sherwood

Citations

• 53 Ill. 171

Syllabus

<p>1. Concurrent remedies upon mortgage debt—effect of decree of foreclosure and sale upon another action. The mere fact that there has been a decree of foreclosure, and a sale of property mortgaged, for a sum sufficient to pay the debt, will not preclude the holder of the mortgage debt from instituting a suit at law thereon, the court rendering the decree of foreclosure still retaining its jurisdiction over the case, with power to set the sale aside, which, if exercised, will leave the debt precisely as though no sale had taken place.</p> <p>3. If the sale under the foreclosure is consummated, the satisfaction of the debt becomes absolute, and relates back to the day of sale; but until it is consummated, the sale will operate only as a conditional satisfaction,—it is a proceeding in fieri, which may or may not extinguish the debt, and while the proceedings under the foreclosure are in that condition, the holder of the debt may properly commence his action thereon, subject to be defeated, however, if the foreclosure sale be afterwards consummated, but which may be prosecuted to judgment if the sale should be set aside.</p>