Vogle v. Brown

Citations

• 120 Ill. 338

Syllabus

<p>1. Decree—as to one not a party. A decree of partition of land will not be binding on the holder of a debt secured by a deed of trust on a portion of the premises, when he is not made a party to the suit, even if the trustee in the deed is made a party.</p> <p>2. Same—ratification of decree by one not a party—effect of acceptance of proceeds of sale made under decree. A decree in partition of lands upon a part of which there was a deed of trust securing a note of $2000, set off ten acres of the mortgaged premises to be divided into lots, and sold by the master to pay off the incumbrance. The trustee was made a party, but not the holder of the note secured by the trust deed. The lots on sale realized about half the amount due on the note, which was paid to the holder of the note: Held, that the acceptance of the proceeds of the sale of the lots by the holder of the note, was not a ratification of the decree, so as to bind him thereby, as his right to the proceeds was not derived from the. decree, but from the trust deed, and did not, therefore preclude him from a foreclosure.</p> <p>3. Same—a decree construed—whether limiting rights of mortgagee. After the giving of a deed of trust by a part of the tenants in common on a tract of one hundred and thirty-four acres of land, a bill was filed for partition, and the decree therein entered, recited that it was made to appear that ten acres of the mortgaged premises would sell for enough to pay off the incumbrance, and ordered ten acres thereof to be sold by the master for the payment of the same, and ordered partition of the residue of the land, without any expression that the proceeds of the sale of the ten acres should be taken in full satisfaction of the incumbrance. The proceeds paid only about half of the mortgage debt: Held, that the decree did not affect the lien of the trust deed on the remainder of the tract for the balance due on the debt thereby secured.</p> <p>4. Tenants in common—contribution to remove incu