Robins v. Swain

Citations

• 68 Ill. 197

Syllabus

<p>1. Cross-bill—may present facts not in original Mil. While it is true that a cross-bill must relate to the subject matter of the original bill, it is not essential nor is it usual that all the facts showing the defendant’s right to the relief sought, should appear in the original bill.</p> <p>2. Mortgage—effect of forecloswre and sale on unpaid debt—merger. Where a mortgage is given upon land to secure the payment of several notes maturing at different times, and a foreclosure and sale is had for a part of the notes, leaving one note unpaid, and the holder of the unpaid note becomes the purchaser of the mortgaged premises and receives a master’s deed, the legal and equitable title to the premises will be merged, and it will operate as a satisfaction of the mortgage and the remaining indebtedness, for the reason that the purchaser in such a case is presumed to have bought the land at its value less the unpaid note.</p> <p>3. Chancery—relief against void, decree and sale ih&reunder. Where, upon the foreclosure of a mortgage, a decree was entered for the sale of land not included in the mortgage under which the same was sold, and possession acquired by the purchaser who was the mortgagee, after he had received the master’s deed: • Held, that, while the mistake, if such it was, might have been corrected on motion, after notice, yet, as it operated as a fraud upon the mortgagor, it was equally within the province of a court of equity to correct it and relieve the mortgagor entirely from all evil consequences proceeding from it, upon a bill filed for that purpose. The master’s deed, although a nullity, was a cloud upon the owner’s title.</p> <p>4. In such a case, a court of equity will set aside the decree and sale as to the land not embraced in the mortgage, restore the possession to the owner and require the purchaser to account for the reasonable rents and profits during the time the land was in his possession.</p>