Smith v. Smith

32 Ill. 198

• Court: Illinois Supreme Court
• Decided: April 15, 1863
• Status: Published

Opinion

Mr. Chief Justice Caton

delivered the opinion of the Court:

We think the court erred in decreeing that, in the event of a sale of the premises under the decree, out of the proceeds of the sale the two notes not due should be paid. This was practically a foreclosure of the mortgage upon those notes, as well as upon those which were due. The court could not decree a foreclosure for more than was authorized by the terms of .the power of sale in the mortgage to sell the premises to pay, and that was “the principal and interest which shall then be due on said notes, or any part thereof, together with costs,” &c. If the party elected to sell under the power, or to foreclose in chancery, he could only sell, or foreclose, for the amount then due according to the terms of the mortgage, and this of necessity would be a release of the security for the amount not due.

■ The decree is reversed and the cause remanded.

Decree reversed.