dissenting:
In our opinion the decision of the court in this case is contrary to our previous decisions and lays down a very harmful rule on the subject of redemption by judgment or decree creditors,—a rule not sustained, as we read and understand the decisions, by reason or authority. 'We do not agree that the statute gave the bank “a clear right to redeem the premises.” The eighteenth section of the chapter on judgments and decrees (Hurd’s Stat. p. 1365,) authorizes redemption by the mortgagors, or anyone interested in-the premises through or under them, within twelve months. By the twentieth section it is provided that if redemption is not made by those authorized to redeem the premises within twelve months, “any decree or judgment creditor.” may redeem within three months after the expiration of the twelve months. The opinion of the court holds that the bank was, at the time it redeemed, a decree or judgment creditor by reason of the fact that its decree was not satisfied by the sale, and as to the balance due, as found by the deficiency decree, it was a decree or judgment creditor within the meaning of the statute, and had full power and authority to redeem by virtue of the deficiency decree. To our minds it seems clear the legislature never intended by the use of the words “any decree or judgment creditor,” to authorize such a creditor to make successive sales of the debtor’s property by bidding at the first sale less than the amount of the decree, and then redeem from his own sale and re-sell the property which had been previously sold by virtue of, and to satisfy, the same decree. The bank procured a decree authorizing it to sell the premises to satisfy its mortgages. When it sold at the foreclosure sale the purpose of obtaining the decree was accomplished, the authority given by virtue of the decree executed and the property discharged from all liability to be sold again to satisfy a portion or balance of the same decree, and the situation was not avoided or altered by authorizing an execution to issue for a deficiency. If the mortgagor had other property liable to execution it could be sold to satisfy the deficiency, but the mortgaged premises could not lawfully be again sold to pay the same debt. The deficiency was a part of the same decree to satisfy which the mortgaged premises had been once sold. Redemption laws are to be construed liberally, but this does not require our statute to he "construed to place the mortgagor at the mercy of the mortgagee. The result of the construction given the statute by the court will lead to harsh and unjust consequences never contemplated or intended by the legislature. The decree in this case authorized the sale of the property for the payment of the entire amount due the bank on both of its mortgages. It did not authorize two sales, nor successive sales until the debt was paid. The bank presumably knew the value of the property and had it in its power to bid its fair cash value, and the presumption is that it did so. It was not intended by the statute on redemption, and is contrary to the policy of the law, that a mortgagee be permitted, at the foreclosure sale, to suffer the property to be sold for less than its fair value, and if not redeemed by the mortgagor, or some one claiming through or under him, that then the mortgagee may redeem from the sale made by him and again sell the same property for the payment of a part of the same indebtedness. To permit this to be done would subject the mortgagor to great disadvantage. His property may be sold for less than its value and less than the amount of the decree it is sold to satisfy. If he does not redeem from the sale and no one else redeems, the title will pass from him without his having received the value of it in satisfaction of his indebtedness. If he redeems, theft the property is again subject to be sold to satisfy the remainder due under the decree. If the bank had the right to redeem under a deficiency decree, it had the right, and it would be the right of any other mortgagee in a foreclosure sale, to pursue that course and make it possible to acquire title-to the property for less than its fair value, and leave the debtor liable for a part of the amount that would have been satisfied if he had received the benefit of the value of the property by the sale under the decree. This view is sustained by Seligman v. Laubheimer, 58 Ill. 124, Ogle v. Koerner, 140 id. 170, and Lightcap v. Bradley 186 id. 510.
This court said in the Ogle case, on page 179: “A mortgage, or, as in this case, a deed of trust in the nature of a mortgage, vests in the party secured a lien upon the mortgaged premises. By virtue of that lien the mortgagee is entitled to have the mortgaged property sold under a decree of foreclosure and the proceeds of the sale applied to the payment of the debt secured. This is the mode provided by law for the enforcement of the lien, and when the lien has been once enforced by the sale of the property, it has, as to such property, expended its force and accomplished its purpose and the property is no longer subject to it. * * * When the redemption is made by a. party primarily liable on the mortgage debt, it may be that the same property may be resorted to again for the purpose of subjecting it to the payment of an unpaid balance due on the mortgage; but that is not because of any right to enforce the mortgage lien against the same property a second time, but because of the rule of law which subjects all the property of a debtor to the payment of his debts until they are satisfied in full. But where the redemption is made by a party riot liable upon the mortgage debt, the mortgage lien having been exhausted, the property cannot be subjected a second time to the satisfaction of the same lien. * * * It is idle for the senior mortgagee to urge that the property redeemed is, in fact, worth much more than the price for which it was sold at the foreclosure sale. He was a competent bidder at such sale, and therefore had it in his power to bid the property up to its fair cash value, and if he failed to do so, a presumption arises, from which he cannot escape, that the property sold for what it was reasonably worth. At any rate, the mortgagee under whose decree the mortgaged property is sold, in the absence of all irregularity and unfairness in the sale, must be conclusively held to the price bid as a full equivalent for and satisfaction of his lien, and having received the proceeds of the sale he becomes a mere stranger to the property.”
In Lightcap v. Bradley the court approved the Ogle case, and said (p. 526) : “The sale of premises under a decree of foreclosure, where the decree does not expressly save any right to resort to the land again, is an absolute discharge of the premises from the lien. In the absence of a provision for another sale the premises will be discharged, even from unmatured portions of the debt. (Rains v. Mann, 68 Ill. 264.) Such a sale is a sale of the land and of all interests, both that which the mortgagor had at the execution of the mortgage and the interest of the mortgagee and other parties to the suit. It is made by the court as vendor, and a sale discharges the land from the lien and transforms it into the statutory lien by the certificate of purchase.”
In the case of Tewalt v. Irwin, 164 Ill. 592, cited in the opinion of the court, no question of a sale under a deficiency decree or a sale to satisfy a balance on a decree under which the premises had been previously sold was involved.
In our opinion the judgment of the circuit court and the judgment of the Appellate Court are wrong and should be reversed.