Plain v. Roth

Citations

• 107 Ill. 588
• 1883 Ill. LEXIS 300

Syllabus

<p>1. Application op payments—when creditor may apply on unsecured debt. Where a creditor holds notes of his debtor, some of which are secured by mortgage, and others, and a judgment, are unsecured, and rents due his debtor are, by the direction of the latter, paid to the creditor, the latter will have the right to apply such payments on the unsecured notes or indebtedness, and if he does not so apply them the law will make the application that way, unless the debtor directs otherwise.</p> <p>2. Same—what is a direction as to application. Where a debtor, in his lease of property, specifies therein that the rént shall be payable to his creditor (“who holds a mortgage”) so long as the tenant occupies the premises, “or until the mortgage is paid off,” etc., this will be evidence tending to show the purpose of the debtor that the rents should apply on the mortgage indebtedness, instead of other unsecured indebtedness.</p> <p>3. Marshaling assets—rule applies only between different creditors. The rule as to compelling a mortgagee or creditor having a lien on two funds to satisfy his claim out of one of them, to the exclusion of the other, has no application between debtor and creditor. ■ It applies only as between different creditors.</p> <p>A The fact that a mortgage covers a homestead, and also other property which is subject to a subsequent judgment lien, gives the debtor no right to have the latter property applied first to the payment of the mortgage debt, so that he may save his homestead.</p> <p>5. Where a creditor has a mortgage covering only a store lot, and another on the store property and the homestead of the debtor, in which there is a waiver of the homestead, and he has also a judgment which is junior to that of a third person, it is to the interest of such creditor to have the homestead property first sold, so that there will be more left out of which to make his judgment, and he should be left to have the sale made in the order he chooses.</p> <p>G. Witne