Shroeder v. Bauer

Citations

• 140 Ill. 135
• 29 N.E. 560

Syllabus

<p>1. Redemption by judgment creditor—priority over junior mortgagee, assignee of certificate of purchase under foreclosure of senior ■mortgage. A junior mortgagee who has been made a party defendant to the bill to foreclose the senior mortgage, and who, within twelve -months after the sale under the senior mortgage, purchases and obtains an assignment of the certificate of the sale, can not assert the lien of his junior mortgage as against an execution creditor who, after the-expiration of twelve months and within fifteen months of the sale, levies Ms execution and makes redemption as provided by the statute. The fact that the former owner may have sold his equity of redemption will not change the rule.</p> <p>2. Same—effect-of assignment of certfiicate of purchase under mortgage foreclosure. Where the holder of a second mortgage on land, after decree of foreclosure of a prior mortgage in a suit to which he was a party, instead, of redeeming from the sale takes from the purchaser an assignment of the certificate of purchase, and by his pleadings claims as purchaser, the court can not treat his purchase as a. redemption from the sale as against one seeking to redeem from such sale as a judgment creditor.</p> <p>3. In this case, A gave his mortgage to B to secure a debt, who assigned the note secured to 0. Afterward A conveyed the land to D, who gave his mortgage thereon to B. C foreclosed his mortgage, making E a party defendant, and became the purchaser at the sale’. Within the twelve months, E, instead of redeeming from the sale, took an assignment of the certificate of purchase from 0. E obtained a judgment in the county court against the estate of D, and took out an execution-thereon, and levied the same on the land, and redeemed from the sale, as judgment creditor of D. E filed his bill to enjoin .the sale under the execution, on the ground it would make a cloud on his title : Heldr that a demurrer was properly sustained to the bill.</p> <p>4. Same—acquiring as