Sweet v. Redhead

Citations

• 76 Ill. 374

Syllabus

<p>1. Mabshalikg- assets. The rule in equity of compelling a first resort to a particular one of two funds for a creditor’s benefit who can reach but one of them, will not be enforced when it trenches upon the rights or operates to the prejudice of the party entitled to the double fund, or works injustice.</p> <p>2. Where A and B executed a deed of trust on 80 acres of land to secure a note given by them, and afterwards, for the purpose of releasing 10 acres of the same, in use for a cemetery, B and his wife gave their trust deed on 17 acres owned by B to secure the payment of the same note, and it appeared that, at the time of the execution of the last named deed of trust, A and B had given two other mortgages on the 80-acre tract, one to C for §1500, and the other to D, the then holder of the note secured by the first deed of trust, for §2500; that the mortgage to C had been foreclosed and sold to E; and after the execution of the several deeds of trust and mortgages, the complainant purchased the 17-acre tract, and who then filed his bill to compel D and the trustee to sell the 80-acre tract before the 17-acre tract: Held, that the complainant, having purchased after the giving of the two mortgages, had no higher equity than the holders under the mortgages, and that, as the sale of the 80-acre tract first might destroy the mortgage securities, it would be unj.ust and inequitable to so decree.</p>