Scates v. King

Citations

• 110 Ill. 456

Syllabus

<p>1. Res judicata—to whom, the rule is applicable—as to persons not parties or privies—of a subsequent purchaser from a mortgagor, who is not a party to a suit to foreclose. A subsequent purchaser from a mortgagor is in no way affected by a decree of foreclosure of the mortgage, to which he is not a party. By such a decree his rights are not changed, enlarged or diminished. As to him, the decree is simply a nullity. In case the prior mortgage was a valid and binding instrument, the subsequent purchaser acquires merely a right to redeem, which will be wholly unaffected by the decree of foreclosure; and, not being a party to the decree, he will be at full liberty, in a different proceeding, to contest the validity of the mortgage, and assert rights adversely thereto.</p> <p>2. Certain county officials executed an instrument in the form of a mortgage, which purported to convey certain lands owned by the county, to a trustee, as security for the payment of certain construction bonds about to be issued by a railroad company. Subsequently to that transaction, the county sold and conveyed a portion of the same lands to a third person. After this sale and conveyance the holders of a portion of the railroad bonds so attempted to be secured, exhibited their bill in chancery against the county to foreclose the mortgage, omitting, however, to make the subsequent purchaser from the county a piarty thereto. A decree of foreclosure was entered, and a sale and conveyance of the lands embraced in the mortgage were had. Thereupon the subsequent purchaser sought by bill in chancery to have the conveyance under the decree of foreclosure set aside as a cloud upon his title. While it was conceded that the decree of foreclosure settled conclusively, so far as the county was concerned, the fact of making the mortgage, the power of the county to make it, and the liability of the county to pay the debt thereby secured, yet, as to the subsequent purchaser from the county, who was not a party