Rogers v. Meyers

Citations

• 68 Ill. 92

Syllabus

<p>1. Marshalling assets—rule not extended to debtor. The rule in equity, that where a creditor has a lien on two funds, and another creditor has a lien on one of them only, the former will be required to satisfy his claim out of the fund upon which the other has no lien, has no application as between the debtor and creditor. It applies only as between different creditors.</p> <p>2. Subrogation—not extended to one paying Ms own debt. Where a debtor gave his note, secured by mortgage on real estate in Kentucky, and his equity of redemption was sold and bid in by another creditor at sheriff’s sale, under execution, and he filed his bill to enjoin the prosecution of an action at law, by an assignee of the note secured by mortgage, and to compel the latter to resort to the foreclosure of the mortgage, or, if that could not be done, and he was compelled to pay the note, that he be subrogated to the equitable right of the assignee to foreclose, and thus compel the purchaser of the equity of redemption to pay the same or lose his purchase, it was held, that the complainant'had no just claim to be thus subrogated, as he was both legally and equitably bound to pay the debt, and that he should redeem from the execution sale or lose the property sold.</p> <p>8. Mortgage—eleetion of remedies. A mortgagee or his assignee has the right to collect the mortgage debt by a suit at law on the notes, or by foreclosure in equity, and the fact that the mortgagor’s equity of redemption has been sold on execution for other indebtedness, will not change the rule or deprive the holder of the mortgage indebtedness of his right of election.</p> <p>4. Same—release of mortgagor from debt. The purchase on execution of the mortgagor’s equity of redemption by a stranger to the mortgage, for other indebtedness, will not affect the right of the mortgagee or his assignee to resort to any or all the remedies he had before. Such a purchase will not render the purchaser the debtor of the mortgagee or his