Keller v. Bading

48 N.E. 436, 169 Ill. 152

• Court: Illinois Supreme Court
• Decided: November 8, 1897
• Status: Published

Opinion

Mr. Chief Justice Phillips

delivered the opinion of the court:

The money arising from proceedings condemning a part of appellees’ lot belonged to them to the extent of their interest in the land as tenants in common, subject to the interest of the mortgagee. The mortgagee, by virtue of her mortgage, had a lien on the entire lo^ and,by the condemnation of a part of the lot her equitable interest therein was not destroyed, she not being a party to that proceeding, and her lien on the fund derived therefrom is equal to her lien on the mortgaged premises. Her equity therein is superior to that of a subsequent judgment creditor, and she was entitled to have the money paid to her. (Colehour v. State Savings Institution, 90 Ill. 152.) It was to the interest of appellees to have the money paid to her and thereby have their mortgage indebtedness paid. It was money they had a right to have applied, arid when the county treasurer refused to pay it over they had a right to file this bill and have the court determine the rights of the parties to the fund and order it paid over. It is not a case of equal equities between two creditors, one of whom has security on two funds, but a case of a superior equity on a fund which the interest of the debtor requires to be paid to whoever was entitled thereto, and such debtors had a right to bring all the parties in interest before the court and have their rights determined. The claim asserted by appellants to this fund rendered the filing of this bill necessary on the part of appellees. Appellants did not disclaim, but by their demurrer denied the right to relief. They were actively contesting the right of appellees to have a decree, and the costs were properly awarded against them.

We find no error in this record, and the judgment of the Appellate Court for the First District is affirmed.

Judgment affirmed.