Thompson v. Frew

Citations

• 107 Ill. 478
• 1883 Ill. LEXIS 286

Syllabus

<p>1. Partition—where a part of the premises are under mortgage— what title passes in case of a sale. Where laucl is sold under a decree in a proceeding for partition, the court having jurisdiction of the subject matter and of the parties in interest, the purchaser will acquire the entire title,— the interest and estate of all the parties,—and this though some of the shares were mortgaged; and the failure of such purchaser to make defence to a bill to foreclose the mortgage, which he might have made, will not preclude him from acquiring title under a subsequent decree of sale, in a partition proceeding.</p> <p>2. Same—effect of subsequent foreclosure on- rights of purchaser in partition. On bill to foreclose a mortgage on a part interest in land, the court has no power, in its decree, to nullify, reverse or modify a decree of sale in a proceeding for partition of the same land, where no such purpose is indicated in the bill, and the parties in the partition case are not brought before the court for that purpose.</p> <p>3. Same—power and duty of court as to mortgage on part interest. In decreeing a partition of land, the court has the power, and it is its duty, to provide for the satisfaction of any valid mortgage upon the interest of any one of the tenants in 'common, in case a sale of the premises is ordered.</p> <p>i. Same—power to determine as to distribution of proceeds of sale. Where a sale is decreed on partition, it is competent for the court to investigate all .questions of conflicting- or controverted titles to the premises, and determine who is entitled to receive the whole or any part of the proceeds of the sale; and when the court, on the petition of a purchaser who is not a party to the suit, determines that he is entitled to a certain share thereof, and orders that he may retain the same as his own, such finding and order are conclusive in a collateral proceeding.</p> <p>5. Same—mode of procedure in case of foreclosure. A mortgagee of an undivided inte