Ogle v. Koerner

G-reeh, J".

The only important question involved is, whether the redemption of the lands by McCarthy from the master’s sale, was an 'equitable or a statutory redemption.

Sec. 18, Chap. 77, Starr & C. Ill. Stats., 842, provides: “Any defendant, his heirs, administrators, assigns, or any person interested in the premises through or under the defendant, may, within twelve months from said sale, redeem the real estate so sold, by paying to the purchaser thereof, his executors, administrators or assigns, or to the sheriff or master in chancery, or other officer who sold the same, or his successor in office, for the benefit of such purchaser, his executors, administrators or assigns, the sum of money for which the premises were sold, or bid off, with interest thereon at the rate of eight per centum per annum from the date of such sale. Whereupon such sale and certificate shall be null and void. Sec. 25, same chapter, provides: “Any person entitled to redeem, may redeem the whole or any part of the premises sold, in like distinct parcels or quantities in which the same were sold.” We perceive no reason why McCarthy was not entitled to the benefits and advantages of these sections. By the assignment to him of the notes and securities once held by Meedles, who was a defendant in the foreclosure proceedings, he became one of the assigns of a defendant and a holder through and under him of a lien upon, and a person interested in the premises sold to Miller, and by the very terms of the 18th section was entitled to redeem said premises from that sale. The record shows also that McCarthy did redeem from said sale by fully complying with all the provisions of the said 18th section. This redemption was purely statutory, and by it the premises so sold were relieved from every lien or claim that had before been placed thereon by the trust deeds which were foreclosed. It is contended, however, on behalf of plaintiffs in error, that even if McCarthy had the legal right to and did redeem under the 18th section, yet because the statute declares when such redemption is made, “ The sale and certificate shall be null and void,” the sale is wiped out; the certificate is the same as if never issued, and the property stands exactly as if no sale had been made, with the exception that an equity arises in favor of the redeeming party (provided he is not the original debtor), for the amount of the redemption money. To that extent McCarthy is, in equity, subrogated to the rights of the party holding the senior lien; to that extent McCarthy has a prior lien, but no further.

In reply to this it is perhaps sufficient to say we are not dealing with a case where defendant in error filed a bill in chancery as a junior mortgagee, asking to redeem from a superior mortgage lien. Hence, the question submitted is not, what are his rights in equity, but what are his legal rights as a redemptioner under the statute? The precise contention of plaintiffs in error has, however, been held untenable in the case of Seligman v. Laubheimer et al., 58 Ill. 124, a case which we think is in point here. Laubheimer on the same day executed two mortgages on the same real estate, one to Seligman, and the other to Saltgenstein. The former was a prior lien, and a bill to foreclose it was filed and the junior mortgagee made defendant. The decree gave the prior lien to Seligman, and to Saltgenstein the second lien, found the amount due, and ordered a sale of the land to satisfy both mortgages. The land was sold for less than the amount secured by the first mortgage, and the junior mortgagee redeemed under the said 18th section. The senior mortgagee afterward filed his petition in the Circuit Court, praying the amount due him, unsatisfied by tlio sale, be ascertained; that a resale of the property be ordered, and that the court declare his mortgage lien still subsisting. In the opinion, it is said, the second mortgagee, by the express provision of the statute, had the right to redeem the lands by the payment of the amount bid.

If he had filed a bill in chancery to redeem, he would then be compelled to do equity by the payment of the prior mortgage debt before he could obtain any relief. The equity of redemption established by the courts is entirely different from the statutory right. In the enforcement of the one right, the party must pay all that is equitably due; in the other, he need only comply with the statute. And it is also there said: “ It was insisted in the agreement that redemption by the junior mortgagee was equivalent to a redemption by the mortgagor, and merely restored the parties to their position before the sale. Then the right of a grantee to redeem is the merest delusion. He only accommodates the prior mortgagee by the payment of money, but derives no advantage from it. His act then was one of folly and the statute lent a trap for the unwary.” We can not so construe the statute. After foreclosure and sale, the mortgagor or his grantees have the absolute right to redeem within twelve months from such sale. The assumption that the redemption by the grantee restores the land to the grantor, as if the latter had redeemed, is a merger of one right in the other. On the contrary, they occupy independent positions. As against the mortgagor, the party redeeming had the entire interest in the land except the equity of redemption. His act did not divest him of this interest; “ it greatly strengthened it.” It is further said in the opinion : “ Without determining the legal effect of the mere foreclosure, we do hold that the decree, followed by a sale of the premises, the purchase and subsequent acts of the first mortgagee, extinguished the mortgage lien. In this State the statute expressly allows a redemption from the sale. It is a solecism to say a redemption from the sale requires the payment of the mortgage debt instead of the amount bid at the sale.” Ho subsequent decision of our Supreme Court has been cited in which the meaning and effect of this statutory redemption is not so construed. The decisions of the courts of other States, cited by the learned counsel for appellant in support of his contention, we must decline to follow, inasmuch as they are not in harmony with that of our own court of last resort. The case in 4 Ill. App. 149, is not in point, nor is the case of Bradley v. Snyder, 14 Ill. 263, which is noticed by the court in Seligman v. Laubheimer et al., supra. "We find no error in the ruling of the Circuit Court sustaining the demurrer to the amended cross-bill and dismissing it, and in allowing complainants in original amended bill-to dismiss the same at their cost. The order and decree of the Circuit Court is affirmed.

Order and decree affirmed.