Smith v. Dinsmoor

Citations

• 119 Ill. 656

Syllabus

<p>1. Mortgage—revival after merger. By vacating a decree of foreclosure of a mortgage, and dismissing the bill, the mortgage will be revived from its merger in the decree, and stand as though no proceeding to foreclose had been taken.</p> <p>2. Purchases from mortgagor—discharge of prior incumbrance— right to subrogation. The owner of a large body of lands gave three mortgages to an insurance company, each on different tracts from the others, after which he gave another mortgage to A, on all the lands embraced in the three prior ones. He then sold to B two hundred and twenty acres of the land in the first mortgage, and also in the mortgage to A, for $7700, shortly after which C recovered a judgment against the mortgagor, who procured a release from the insurance company as to the two hundred and twenty acres, by the purchaser applying $4400 of the purchase money on the debt secured by its first mortgage, and the balance on the other mortgages: Held, that the purchaser was entitled to be subrogated to the lien of the first mortgage, to the extent of $4400, with six per cent interest, as against the mortgage of A and the judgment in favor of C.</p> <p>3. Same—purchaser taking indemnity as against another prior lien—■ effect upon his right to subrogation to the lien discharged. Where a purchaser of mortgaged premises procured a release of the first mortgage, by payment of the purchase money to its holder, and took from his vendor a mortgage on other property to indemnify himself against another and intervening mortgage on the land sold him, it was held, that the taking of the mortgage indemnity did not affect his right to be subrogated to the lien of the first mortgage.</p> <p>4. Same—when purchaser is regarded as an assignee, in equity—as respects intervening lien holders. Where a second mortgage is given on the same land, the holder thereof acquires but a lien on the equity of redemption, and a subsequent judgment creditor occupies the same position; and a purchaser