Shaver v. Williams

Citations

• 87 Ill. 469

Syllabus

<p>1. Mortgage—renewal, when does not lose its priority. Where a party takes a new mortgage to secure the payment of the same debt secured by a prior one, and this fact is stated in the later mortgage, no new note being taken, and gives a release of the old mortgage, which is recorded on the same day with the new mortgage, and there is no substantial difference in the two mortgages, this will not give priority to a mortgage given to another and recorded after the first and before the last of said mortgages.</p> <p>2. Same—foreclosure— as to homestead. On foreclosure of a mortgage not releasing the homestead right, in which a subsequent mortgagee was made a party, in whose mortgage the homestead was waived and released, and where it appeared that a division could not be made setting off the homestead, it was held error to decree the payment of $1,000 to the mortgagor out of the proceeds of the sale of the premises. So much of that sum as was necessary should have been decreed to be paid in discharge of the second mortgage, without any cross-hill being filed for that purpose.</p> <p>3. Merger. Where a party acquires a deed of land upon which he holds a mortgage or other incumbrance, and the question arises whether the incumbrance is discharged by the conveyance, the intention of the party at the time the deed was obtained will, in equity, he considered as the controlling consideration.</p>