This proceeding is in the nature of a suit in interpleader to determine the ownership of a sum of money in the hands of plaintiff. *Page 673
I concur in the determination of the respective rights thereto, as stated in the opinion of the court, except as to the claims of Jackson county and Mrs. Electa A. Fehl.
I am unable to concur in the statement that the fund in question originated in the mortgage of Niedermeyer, Inc., upon the real estate owned by Fehl. That mortgage had been paid before its attempted assignment to Niedermeyer, Inc., and, of course, before its attempted foreclosure. At all times subsequent to its full payment, it was functus; and, in my opinion, there is nothing in the record which ought to have the effect of depriving the Fehls of the right to challenge the validity of the foreclosure proceedings.
"The payment of a mortgage extinguishes the power of sale contained in it, if a statutory foreclosure is conducted thereafter, a bona fide purchaser at the sale will acquire no title in the premises." Vol. 2, Wiltsie on Mortgage Foreclosure (3 Ed.) p. 1290, § 915, note 21 citing Cameron v. Irwin, 5 Hill (N.Y. 272 and Warner v. Clakeman, 36 Barb. (N.Y.) 501, Aff'd. 4 Keyes (N.Y.) 487.
Cameron v. Irwin, supra, declares the principle announced in the text as above quoted.
Warner v. Blakeman, supra, contains the following comment:
"But it is said by Cowen, J. in Cameron v. Irwin, that payment extinguishes the power of sale, and the case becomes the same as if none had ever been inserted in the mortgage, and that the mortgage `ceases to operate either at law or in equity, and the whole title reverts in the mortgagor.' * * * `To call it a mortgage would be an abuse of the word. It is no more than a blank. It cannot be that a naked foreclosure by advertisement shall take away a man's farm.' All this would *Page 674 be the undeniable conclusion, if the mortgagor was in a position to dispute the sale. It certainly is not true, when the mortgagor looks on, and without objection, sees his farm sold to a bonafide purchaser under a written power of sale in a mortgage which he knows is satisfied. Nor can the mortgagor be heard to allege payment of the mortgage when he has consented to its foreclosure. If, however, the foreclosure takes place without notice to him, or without his fault, after payment of the mortgage debt, the rule would doubtless be applied as rigidly as contended for by the learned judge in Cameron v. Irwin."
In the case at bar, the mortgagors did not consent to the attempted foreclosure but contested it at every step, unless the successful efforts of Mrs. Fehl to hold the matter in abeyance by advancing $72.43 and executing her promissory notes to the purchasers and the placing in escrow of the certificate of sale can be construed as such consent.
As I view it, this fund originated in real estate owned by Mr. Fehl in which Mrs. Fehl had an inchoate right of dower and hence I think that, except as to the purchasers, the rights to the fund are those which the respective parties would have had respectively in and to the real property if the fund had not been created, augmented by such sums of money as were contributed to the fund.
Upon reversal of the pseudo foreclosure decree, the parties became entitled to be restored to their former rights as nearly as possible: Thompson v. Davis, 297 Ill. 11 (130 N.E. 455).
The foreclosure proceedings might well have been entirely set aside, because when the supposed sale of property was made the purchasers in making their bids were fully apprised of the claims of the Fehls and were *Page 675 acting in accordance with that knowledge. If this had been done, the fund would have been returned to the purchaser, the notes, executed by Mrs. Fehl, would have been returned to her, the certificates of sale, placed in escrow with the county treasurer, would have been cancelled, and the title to the real property would have remained as above stated subject to the valid liens thereon. Jackson county would have had a lien upon Mr. Fehl's interest in the real estate, but no claim whatever upon Mrs. Fehl's dower right therein: 19 C.J. Subject: Dower, p. 520, § 173, notes 83 and 84.
Without in the least impugning the motives of any one, I think the mortgage had no existence in equity when it was attempted to be assigned to plaintiff and none when the foreclosure proceedings were instituted or at any time thereafter. The entry of the decree of foreclosure was a mistake. It could not affect Mrs. Fehl's dower interest in such a way as to subject it to the lien of Jackson county. The execution by Mrs. Fehl of the notes, by means of which she procured the money used, as stated in the opinion, to bid in the property at the purported foreclosure sale and the placing in escrow of the purported certificate of sale, in my view, could not have the effect of enlarging the scope of Jackson county's lien or of transferring Mrs. Fehl's interest in the fund to Mr. Fehl. As I view it, the purpose of this course was to preserve the corpus in statu quo until the respective rights therein could be determined in court.
It is manifest that the Fehls were unable to procure a supersedeas bond on appeal; but by the advancement of a comparatively small sum of money and the execution of her notes as stated Mrs. Fehl brought about a result tantamount to that which would have ensued *Page 676 if such a bond had been given. My conception of the equities, thus created, causes me to believe that, as nearly as possible, we should protect her rights as they existed before the institution of the unwarranted foreclosure proceedings. In doing this, there need be no diminution of Jackson county's lien against Mr. Fehl's property.
The property of the Fehls was being subjected to an unwarranted foreclosure, the husband was being prosecuted, and, pending the appeal, was convicted, and the Fehls were unable to secure a supersedeas bond. These circumstances were so coercive in their nature that I think they justify the application of equitable restraint preventing a forfeiture of Mrs. Fehl's dower interest.
Jackson county, in its brief, does not dispute the existence of the right of dower on the part of Mrs. Fehl. I quote from that brief:
"It is true that Mrs. Fehl was a party to the original foreclosure suit of Niedermeyer Inc., but the record shows (Defendant Stailey, Page 198 of the transcript of testimony) that the property was deeded to Earl H. Fehl and not to Fehl and wife jointly, so that Mrs. Fehl's interest in the property could onlyhave been a dower interest." (Italics supplied.)
It is true that Jackson county urges, and the opinion of the court holds, that Mrs. Fehl should have set her interest out in a separate answer, and that it is too late now to urge any such interest. I am unwilling to approve such a narrow and restricted procedure in the light of this entire record.
Under the somewhat unusual state of the record, wherein it appears that the trial court failed to follow the mandate of this court or make any other final *Page 677 disposition of the former case, I think the pleadings should be liberally construed to the end that justice may be done without further delay. It is that thought which prompts me to concur in the opinion of the court upholding the maintenance of this proceeding.
By thus approving the exercise of jurisdiction over the fund in suit it devolves upon this court to construe the record, either as having the effect of a ratification by Mr. and Mrs. Fehl of the sale on foreclosure and a waiver of their right to a restoration of their property or its equivalent or merely as having the effect of creating a fund to which the principle of equitable conversion should apply and in the distribution of which, as nearly as possible, the parties should participate in accordance with their respective interests in, rights to and liens upon the real estate as those interests, rights and liens would have existed and accrued if no attempt had been made to foreclose the paid-up mortgage.
With due respect for the opinion of the court and the able, experienced and learned jurist who wrote it, I can not concur in adopting the first of these two alternatives. I think that the latter alternative is more consonant with recognized principles of equity and justice.
In their brief, the Fehls contend that by reason of the fact that the fund was obtained upon the credit of Mrs. Fehl, as evidenced by her promissory notes, as well as upon the real property, in which she had a dower interest, Mrs. Fehl would be entitled to such a part of the fund as would adequately represent the value not only of her inchoate right of dower but of her promissory notes and the money she contributed. While I *Page 678 recognize the force of this argument, I am of the opinion that the value of her inchoate right of dower and the $72.43 she advanced in money constitute the extent of her interest in the fund.
"The inchoate right of dower is more or less valuable according to the relative ages, constitution and habits of the husband and wife. Established mortality tables may be used in estimating the value of the inchoate dower interests of a wife in her husband's lands. In addition to the use of mortality tables, it is competent to show the age, health and habits of both husband and wife." 19 C.J. Subject: Dower, p. 494, § 107.
Mr. and Mrs. Fehl have contended that the present suit could not be maintained. They have argued, and I think with much cogency, that the mandate of the supreme court in the foreclosure suit should have been observed directing the entry of an appropriate judgment and decree against plaintiff and that such procedure only was proper. This contention, in my opinion, did not dissipate or lessen the right of Mrs. Fehl to participate in the fund in suit to the extent of the value of her dower and the money which she advanced toward such fund.
Except as to the extinguishment of the interest represented by the value of Mrs. Fehl's inchoate right of dower in the fund in favor of Jackson county's judgment against Fehl alone, I concur in the opinion of the court. *Page 679