The foregoing opinion was filed of the January term, 1872, after which a petition for a rehearing was presented, which was denied at the January term, 1873, when the following opinion was filed:
Per Curiam :After a careful consideration of the grounds urged for a rehearing in this case, we are unable to arrive at a different conclusion from that announced in the opinion, but shall briefly consider the grounds urged on the hearing and again presented in the petition, that, on a sale under a judgment on scire facias, there is no redemption, and that therefore the relation of mortgagor and mortgagee terminated at the time the land was sold, and the statute then began to run, and if so, the bar was complete when the suit was brought.
The 23d section of the chapter entitled “ Judgments and Executions ” provides the manner in which mortgages may be foreclosed by scire facias. It requires the court to render a judgment for the sum due on the mortgage with costs, and directs that a fieri facias be awarded for the sale of the premises, on which the like proceedings shall he had as in other cases of execution levied on real estate, but not to create a lien on other real or personal property.
On turning to section 12 of the same act, we find what the proceedings are under other cases of execution levied on real estate. It provides that, whenever any lands or tenements shall be sold by virtue of any execution, it shall be the duty of the officer, instead of executing a deed for the premises sold, to give the purchaser a certificate in writing stating, among other things, the time when the purchaser will be entitled to a deed unless the land shall be redeemed according to the provisions of that chapter. The sale in this case was under an execution, and manifestly falls within the 12th section, which requires the certificate of purchase to be given instead of a deed.
The 13th section of the same chapter provides that, the defendant whose lands shall be sold under “ any execution,” shall have twelve months within which to redeem the same. Row, this sale was made under an execution, and is manifestly within the provisions of the 13th section, and was clearly subject to redemption, and hence the relation of mortgagor and mortgagee did not terminate until the expiration of the time for redemption.
The cases of Farnsworth v. Strasler, 12 Ill. 487, and West v. Flemming, 18 Ill. 249, are referred to as showing that there was no redemption. In those cases the sales were under decrees in chancery proceedings, and not under judgment and execution, and are not governed by the same statutory provisions. The first of these cases was not the foreclosure of a mortgage, But was a bill to remove impediments by fraudulent conveyance, and to subject land to the payment of debts of the grantor, and the other case was under a decree in a case of a mechanic’s lien. It was held, in each of these cases, that a redemption was not given by the statute under such sales; whilst, in the case under consideration, a redemption, as we have seen, has been given.
The petition for a rehearing must be refused.
Rehearing refused.