dissenting:
The judgment of the Euclid Avenue Savings and Banicing Company against Otto C. Meinshausen, of which the appellee is assignee, was rendered November io, 1897, and an execution having issued thereon within one year from its rendition, (Rev. Stat. chap. 77, sec. 1,) it became a lien on said mortgaged premises so soon as Meinshausen acquired title thereto, subject to said trust deed, and was a lien on said premises at the time the bill was filed, on July 1, 1902, to foreclose said trust deed, and the owner of said judgment should have been made a party to said foreclosure proceedings if his rights as a lienholder were to be affected by said proceedings, and as such owner was not made a party to the said proceedings the decree of foreclosure entered therein had no effect upon his rights, as a judgment lienholder, upon said premises. (Rodman v. Quick, 211 Ill. 546.) The judgment remained a lien upon said premises until May 10, 1904, and up to that time the appellee might have had an execution issued upon said judgment and levied the same upon said premises and sold the equity of Meinshausen therein, the same as though no foreclosure of the trust deed had taken place, and in case of no redemption the purchaser at said sale would have acquired the title of Meinshausen subject to the liens thereon which were prior to said judgment, or he might have redeemed as a judgment creditor within the time fixed by the statute from the foreclosure sale, under the provisions of section 20 of chapter 77 of the Revised Statutes, and had the premises re-sold, and in case there had been no redemption from said re-sale the purchaser would have acquired the title of Meinshausen subject to prior liens. Appellee, however, pursued neither course, but remained passive until the present bill was filed, when he sought to have his rights in the premises as a judgment creditor established by decree of court in this case and the time of redemption extended beyond the period fixed by the statute in which a judgment creditor may redeem from a judicial sale, and he be permitted to redeem from said foreclosure sale long after his right under the statute as a judgment creditor to redeem had expired. If the appellee had been made a party defendant to the foreclosure suit, he would by th.e decree in that case have been barred of his right to sell the premises under his judgment, and in the foreclosure suit, while the surplus of a sale after the trust deed was satisfied might have been applied in satisfaction of appellee’s judgment, it would have been error for the circuit court to have deprived the appellee of his right to redeem within fifteen months as a judgment creditor. (Boynton v. Pierce, 151 Ill. 197; Beadle v. Cole, 173 id. 136; People v. Bowman, 181 id. 421.) In the Boynlon case, on page 203, it was said: “Where a party files a bill to foreclose a mortgage, and there are judgment creditors who have liens against the mortgaged premises subsequent to the mortgage, the judgment creditors are necessary parties to the bill to foreclose; but it has never been understood because they may be made parties defendant. to a bill to foreclose the mortgage they lose their right to redeem as judgment creditors.” And in the Bowman case, on page 424: “In this case it appears that B. Goedde had recovered a judgment against the mortgagors before the foreclosure of the mortgage, hence he, as a judgment creditor, was a proper and necessary party to that proceeding. But the decree rendered in this case did not deprive him of any right conferred by the statute upon a judgment creditor to'redeem from the sale. The right conferred by statute on him as a judgment creditor was not cut off or abridged by reason of his having been made a party to the bill to foreclose, nor by virtue of anything found in the decree.”
This bill, while filed as an original bill, is supplemental in form, and was filed with a view to obtain relief against the appellee which the appellant failed to obtain in- the foreclosure suit by reason of her neglect to make the appellee a party to that suit, but which might have properly been granted to her in that suit had he been a party. We think, therefore, in this suit, as must have been the case in the foreclosure suit had the appellee been a party to that proceeding, the circuit court properly refused to enlarge the right of redemption of the appellee as a judgment creditor conferred upon him by the statute.
In determining the question whether the appellee had the right to redeem from said foreclosure sale at the time the decree was entered in this suit, the distinction between the right of redemption which rests in a party who iá an owner of or has an interest in the equity of redemption, and one who seeks to redeem as a decree or judgment creditor, should not be lost sight of. In the former case the party redeems as owner,—that is, he discharges the lien upon his land, and being invested with the title to the land, subject only to the lien, when the lien or encumbrance is discharged he is invested with the absolute fee title to the land; while in the case of a decree or judgment creditor he simply is the holder of a lien upon the premises, and when he discharges the lien or encumbrance upon the land which is prior in point of time to his lien, he has not obtained the title to the premises, but he must thereafter acquire the title, in order to make his redemption effective, by a judicial sale and master’s or sheriff’s deed, and unless a party seeking to redeem from a judicial sale is in a position so that he cannot only discharge the premises from the lien but also acquire the title by a sale under valid process, no valid redemption can take place as against a party holding the prior lien from which redemption is sought, who refuses to accept the redemption money. (Meyer v. Mintonye, 106 Ill. 414.) As we have seen, the appellee is a judgment creditor, and before he could redeem from the foreclosure sale he must comply with the provisions of section 20 of chapter 77 of the Revised Statutes, which section provides that if redemption is not made by the owner of the equity of redemption within twelve months after the date of sale, a judgment creditor may within the next three months sue out an execution upon his judgment and place the same in the hands of the sheriff, who shall endorse upon the back of the execution a levy of the premises desired to be redeemed, and the person desiring to make the redemption shall pay to the sheriff the amount for which the premises to be redeemed were sold, with interest, for the use of the purchaser at the sale sought to be redeemed from, and the sheriff shall file in the office of the recorder of deeds in the county where the premises are located a certificate of redemption, and shall then proceed to advertise and offer for sale the redeemed premises under said execution, the same as in other cases of sale on execution. The judgment of appellee became dormant November 10, 1904, and at the date of the decree entered in this case he was not in a position to have execution issued upon his judgment, and for want of ability to take out an execution upon his judgment he could not effect a redemption, under the provisions of said section 20, at the time the decree was entered in this case. .
It is said, however, under the authority of Whitehead v. Hall, 148 Ill. 253, Beadle v. Cole, 173 id. 136, and Morava v. Bonner, 205 id. 321, it was not necessary that execution issue before a redemption could be effected. . Those cases were redemptions from sales under decrees foreclosing senior mortgages by junior mortgagees whose mortgages had ripened into decrees and where the decrees did not provide for executions, and where it was held the decree was all the process that was required to authorize a redemption and resale, and were not redemptions by judgment, creditors. In the Morava case, on page 324, the court said: “It is first contended ' that the redemption by appellees is invalid because they did not sue out an execution upon their decree and deliver the same to the sheriff or other proper officer, and have him endorse on the back thereof a levy on the premises desired to be redeemed, in accordance with the terms of section 20 of chapter 77 of our statutes. (2 Starr & Cur. Stat.—2d ed.—p. 2358.) The decree under which the redemption was made did not provide for the issuing of an execution except in case of a deficiency after sale, and under the authority of Whitehead v. Hall, 148 Ill. 253, and Beadle v. Cole, 173 id. 136, no execution or levy was necessary or proper, as the decree was all the process that was required to authorize a redemption.” As the appellee was a judgment creditor and could not re-sell after redemption so as to acquire title except upon a valid execution, and as no valid execution could issue on his judgment by reason of lapse of time, he could not redeem, and the cases above referred to are not in point.
It is also urged that the appellee was entitled to redeem, at the time this bill was filed, as a judgment creditor, and that his right to redeem was not lost by the delay incident to a hearing of the case. The fifteen months in which, under the statute, appellee was entitled to redeem, on the day this bill was filed had expired. He could only redeem as a judgment creditor by having an execution issued upon his judgment and by having it levied upon the premises sought to be redeemed and by depositing with the sheriff of the county the redemption money within the time fixed by the statute. He failed to comply with the plain provisions of the statute governing the redemption by judgment creditors from judgment sales until the time in which he could comply with them had gone by, and at the time the case was finally disposed of by decree it is apparent that a redemption from said foreclosure sale could not be effected by the appellee as a judgment creditor, and it is also apparent that at the time the decree was entered appellee’s judgment had become dormant and he could not sell the premises thereunder. In view of this state-of the record we think the circuit court did not err in holding that no might then existed in the appellee, as a judgment creditor of Meinshausen, as against said premises.