Thompson v. Frew , 107 Ill. 478 ( 1883 )

Mr. Justice Scholeield

delivered the opinion of the Court:

The decree of foreclosure in favor of plaintiff in error did not affect the interest which the defendant in error derived by the master’s deed under the partition sale, for the plain reason that the decree of foreclosure was rendered on the 17th of April, 1875, and the master’s sale under the decree for partition did not occur until the 17th of March following (1876.) The failure to make defence as to the interest affected by the foreclosure,—i. e., that which defendant in error obtained by the master’s deed under the decree foreclosing the mortgage of William Goodrich to Laura Ann Goodrich,—can, upon no principle that we are aware of, be held to preclude the defendant in error from obtaining title to the whole of the property at the master’s sale under the decree for partition. The interests are totally distinct and independent of each other. Randolph was a party to the decree for partition, as the record shows, and he is, therefore, bound by it. Defendant in error was not a party to that decree, and he is, therefore, affected by no mere irregularity not going to the question of jurisdiction. There was jurisdiction of the persons and of the subject matter of the suit, and there was a decree of sale, and this was sufficient to protect defendant in error, whether the prior decree for partition was rendered or not. Hunter v. Stoneburner, 92 Ill. 75; Allman et al. v. Taylor et al. 101 id. 185; Mulford v. Stalzenback, 46 id. 303.

The questions decided in Greenup v. Sewell, 18 Ill. 54, Tibbs v. Allen, 27 id. 128, Sullivan v. Sullivan, 42 id. 315, and McLain v. Van Winkle, 46 id. 406, cited by counsel for plaintiff in error, arose upon error or appeal, in a direct proceeding to reverse the decrees or judgments, and not, as here, collaterally. Plaintiff in error, here, stands in the shoes of Randolph, whose estate he represents, and is therefore affected, as a party, by the decree in the partition case. It can need no authority to prove that* the court could not, in the decree of foreclosure, nullify, reverse or modify the decree in the partition case, no such purpose being indicated by the bill, and the parties in the partition case not being brought before the court for that purpose.

The mortgage was but a lien on the interest covei'ed by it, and it was competent for the court in decreeing partition, and, indeed, it was the duty of the court, if the lien was valid and subsisting,' to provide for its satisfaction in the event of the sale of the interest. The statute expressly provides that “a person having a mortgage, attachment or other lien on the share of. a part owner, shall be concluded by the judgment in partition, so far as it respects the partition and the assignment of the shares, but his lien shall remain in full force upon. the part assigned to or left for such part owner.” (Rev. Stat. 1874, chap. 106, sec. 24, p. 751.) And when the premises can not be divided, but are sold under decree of the court, it’is made the duty of the court to divide the proceeds of the sale according to the interests of the parties. (Rev. Stat. 1874, chap. 106, sec. 31, p. 752.) And, besides this, by section 39, power is also given the court “to investigate and determine, in suits for the partition of real estate, all questions of conflicting or controverted titles,” etc. Where, therefore,; a sale was decreed, it was competent for the court to investigate the claim made by the plaintiff in error, and that made by .the defendant in error, to three-sevenths of the proceeds; and this the court proceeded to-do. Whether in that determination there was error, or whether the question is still pending, we can not now inquire, a direct proceeding by error or bill for review being the only mode by which such inquiry can be made.

When the court acquired, jurisdiction in the partition case, and proceeded to act, the mortgagor was still entitled, in default of performance of the condition of the mortgage, to have a decree of foreclosure, but its decree could, of necessity, only be enforced in conformity with the prior adjudication in the partition proceedings,—i. e., in case of division, to sell the part assigned to the mortgagor, and in case of sale, to appropriate the proceeds, which would otherwise go to the mortgagor, pro tanto, in satisfaction of the. amount due upon the mortgage. By no possibility could the decree of foreclosure, pure and simple, change or materially affect the rights of the parties, or the question of the necessity of a sale, as previously fixed by the decree of partition, or the rights of purchasers under such sale. So much of the decree of foreclosure in the present ease as directs a sale of the property described, is, therefore, invalid, because that court had then no jurisdiction of that question, it having been previously withdrawn and exercised in the decree of sale in the partition suit. To that extent there was wanting jurisdiction of the subject matter.

We see no cause to disturb the decree below. It is therefore affirmed.

Decree affirmed.