Tyrrell v. Ward

Citations

• 102 Ill. 29
• 1882 Ill. LEXIS 3

Syllabus

<p>1. Subrogation—discharge of prior incumbrance by junior mortgagee —rights under intervening judgment lien. Where a person loaning money, talking a deed of trust as security, applies a portion, of the money so loaned in the discharge of a prior incumbrance on the premises embraced in his deed of trust, for the purpose of making his security a first lien, he mil, in equity, be subrogated to the rights of the prior lienholder in respect to his security, although there be a formal release of the prior incumbrance, and the transaction will be treated as an assignment of such prior lien or incumbrance, so as to cut off an intervening lien of a judgment recovered against the grantor in the trust deed after the execution and recording of such deed, but before the money loaned was actually paid over, so far as concerns the lien of the prior incumbrance.</p> <p>2. In such case a purchaser under the-judgment will not be allowed to assert his title as against the junior mortgagee so advancing the money to discharge the prior incumbrance, without first paying to the latter the sum so advanced by him, and after a sale under the junior mortgage, cutting off the equity of redemption sold under the judgment, the title of the purchaser under the judgment will be extinguished.</p> <p>3. Same—execution sale of equity of redemption—what interest in the land will pass. Where a party at the time of the recovery of a judgment against him, has only an equity of redemption in real estate, the lien of the judgment will attach only to such equity of redemption, and that is all that will pass to a purchaser under execution upon such judgment,, and if the latter fails to redeem from prior incumbrances on the land, and suffers it to he sold under a power of sale, in favor of one who.succeeds to such ’prior lien, all rights acquired under the execution sale will be gone.</p> <p>4. Inuring op title.—as between a mortgagor and a junior mortgagee. Where prior liens are discharged restoring the leg