Niles v. Harmon

Citations

• 80 Ill. 396

Syllabus

<p>1. Mortgage—-foreclosure—order of sale in case of subsequent grants by mortgagor. On the foreclosure of a mortgage as against subsequent grantees of the mortgagor of different portions of the mortgaged premises, the general rule in equity is, that the granted portions shall be sold in the inverse order of their alienation, so that the land of the last grantee Is first subject to sale.</p> <p>2. Same.—foreclosure when mortgagor sells paurt. Where the owner of mortgaged land conveys a part of it with warranty, it is his duty to protect the grantee against the mortgage, and upon foreclosure of the mortgage, it should first be satisfied out of the portion of the land remaining in the mortgagor. And should the mortgagor convey the portion remaining in him to a second purchaser, he takes the land as it was in the hands of the mortgagor, primarily charged with the payment of the mortgage debt.</p> <p>3. Where the mortgagor sells a part of the mortgaged premises, taking notes and mortgage on the same from the purchaser, which remain unpaid, and afterward conveys the balance to other parties, on foreclosure of the original mortgage, and on cross-bill to foreclose the second one, where the notes secured thereby have not been transferred, it seems that the land first conveyed should first be charged to the extent of the sum due thereon by the purchaser, and sold, and the proceeds of sale applied in extinguishment of both mortgages. But where the notes of the first purchaser have been transferred before maturity, the purchase money will be treated as paid, and the portions last alienated must first be sold to satisfy the original mortgage.</p> <p>4. Vendor and purchaser—liability of grantor for failure of title. The grantor of lands, where the convejuince contains no covenants of title, and no fraud is shown, is not responsible for the failure of title to any particular tract conveyed.</p> <p>5. Settlement of accounts. Where a third party computed and stated the accounts of