Schuck v. Gerlach

101 Ill. 338, 1882 Ill. LEXIS 90

• Court: Illinois Supreme Court
• Decided: January 18, 1882
• Status: Published

Opinion

Mr. Chief Justice Craig

delivered the opinion of the Court: .

It appears from the record that Alfred L. Vinson, the mortgagor, after the execution of the mortgage, and before the filing of the bill to foreclose, in August, 1878, died intestate, leaving as his only heirs his mother, Mary A. Vinson, and James B. Vinson, a brother, and Margaret Vinson and Elizabeth Kelley, his sisters. These heirs, and the administrator of the estate, were made parties defendant to the bill. A decree was rendered, the mortgaged premises sold, but. no redemption was made within a year, and the first question presented by the record is, whether a person holding a judgment against either of the defendants, James B., Mary A., Margaret Vinson, or Elizabeth Kelley, can be regarded as judgment creditors within the meaning of the statute, and entitled to redeem from the foreclosure sale under the mortgage.

We do not regard the point presented an open question in this State, but on the other hand, the right of such a creditor to redeem as a judgment creditor, within the meaning of the statute, was fully settled in Lamb v. Richards, 43 Ill. 312. In that case, Richards, after having executed a mortgage on certain lands, conveyed the same to Lamb. The administrator of the estate (Richards having died) and Lamb were made parties defendant to a bill to foreclose the mortgage, a decree of foreclosure was rendered, the land sold, and after the expiration of twelve months the judgment creditors of Lamb were allowed to come in and redeem from the sale under the mortgage as judgment creditors, within the meaning of the statute. Here, the Vinson heirs, who were defendants in the foreclosure proceedings, occupy precisely the same position that Lamb occupied in the case cited, except . that here they acquired title to the mortgaged premises by descent, while in the case cited Lamb acquired title by purchase from the mortgagor, which can make no difference. The Vinsons occupy the same position that they would had they obtained title by deed from the mortgagor. Lamb v. Richards must, therefore, be regarded as conclusive upon the question that a creditor holding a judgment against one of the Vinsons had the right, under the statute, to redeem from the mortgage sale as a judgment creditor.

It is claimed that redemption could not be made of an undivided interest,—that the whole sum for which the land sold, with interest, should have been paid, in order to effect a redemption. The position of appellant on this point, under the statute of 1845, would no doubt be correct, as held in Durley v. Davis, 69 Ill. 133; but under our present statute a joint owner of land sold may redeem whatever interest he has in the land sold, upon payment of his proportion of the amount which would be necessary to redeem the whole. So, • also, a judgment creditor of a joint owner may redeem. (Sec. 26, Rev. Stat. 1874, p. 625.)

It is next urged, that the attempted redemption of Albert Phillipps of the undivided three-fifths of the land purchased by SchuCk was unauthorized. After appellant had made a redemption from the mortgage sale, and become the purchaser of the premises himself, judgment creditors of the mortgagor, Alfred L. Vinson, had sixty days allowed them to redeem from him. Before Phillipps undertook to make a redemption, two-fifths of the premises had been redeemed, and when he, as a judgment creditor, undertook to redeem, three-fifths only of the land remained subject to redemption. But no reason is perceived which would prevent him from redeeming such portion of the lands as had not been redeemed, if he saw proper to do so. He was a judgment creditor of the original mortgagor, and under the statute he had a right to redeem any part or portion of the lands which had not been redeemed when he undertook to effect a redemption. The statute gave him the right of redemption, and the fact that other creditors had preceded him and redeemed a portion of the lands sold, did not deprive him of the right conferred by the statute, so long as any of the lands remained unredeemed. The claim upon which Phillipps redeemed was allowed in the county court, in the name of Walter Tia.nha.rn, and assigned to Phillipps. It was no doubt irregular to issue the special execution in the name of Phillipps, but the execution was not for this reason void, and in this collateral proceeding its validity can not he questioned by appellant. Redemptions are looked upon with favor, and when no injury is to follow, a liberal construction will be given our redemption laws, to the end that the property of the debtor may pay as many of the debtor’s liabilities as possible. Here the full amount of the redemption money due appellant under the law is in the hands of the officer, subject to his order, and he can suffer no loss by the decision of the circuit court holding that the lands were redeemed in conformity to the statute.

The judgment will be affirmed.

Judgment affirmed.