Ætna Life Insurance v. Beckman , 210 Ill. 394 ( 1904 )

Mr. Justice Scott

delivered the opinion of the court:

Within twelve months after the foreclosure sale the owner of the equity of redemption conveyed his interest, by deed, to another. No redemption was made within the twelve months. After the expiration of that period the grantee in the deed confessed judgment in favor of a creditor, who redeemed prior to the expiration of the period of fifteen months after the sale. In Fitch v. Wetherbee, 110 Ill. 475, we held, under like circumstances, that the judgment creditor of the person who owned the equity of redemption at the time the mortgage was foreclosed, if no prior redemption had been made, could redeem after the expiration of twelve months and within fifteen months, and appellant now urges that a judgment creditor of the purchaser of the equity of redemption, where the equity is transferred after the foreclosure sale, is not a judgment creditor who is entitled to redeem, his position being, that no judgment creditor has a right to redeem except a judgment creditor of the person who owned the equity of redemption at the time the foreclosure suit was instituted.

Section 20 of chapter 77 of Hurd’s Revised Statutes of 1903 gives the right of redemption to “any decree or judgment creditor,” without specifying whose creditor. The statute'of 1845 (Rev. Stat. 1845, chap. 57, secs. 14, 24,) gave the same right to judgment and decree creditors without specifying against whom the judgment or decree must stand. Under that statute we held in Lamb v. Richards, 43 Ill. 312, that where the mortgagor had conveyed his interest in the real estate after the execution of the mortgage but prior to the foreclosure, a judgment creditor of the grantee had the right of redemption, and while not then deciding the question, we there said (p. 315): “It may be a reasonable construction to hold, that as either the mortgagor or his grantee can, by the express language of the statute, redeem within twelve months, so, when their rights are gone, a judgment creditor of either may redeem.” Under our law, after a foreclosure sale the owner of the equity of redemption still has precisely the same estate that he had prior to the decree of foreclosure. (Stephens v. Illinois Mutual Ins. Co. 43 Ill. 327; Rockwell v. Servant, 63 id. 424; Lightcap v. Bradley, 186 id. 510; Bradley v. Lightcap, 202 id. 154.) If, then, a right of redemption exists in the judgment creditor of the grantee who receives a conveyance from the owner of the equity of redemption prior to the institution of foreclosure proceedings, and if the estate of the owner of the equity of redemption is precisely the same after the foreclosure sale and prior to the expiration of the twelve months period as it was before the institution of the foreclosure proceedings, it necessarily follows that a right of redemption exists also in the judgment creditor of the grantee who takes a deed from the owner of the equity of redemption after the foreclosure sale and prior to the expiration of the twelve months period.

Appellant suggests some very interesting questions in regard to priorities between judgment creditors of the owner of the equity of redemption at the time of the institution of the foreclosure suit, and judgment creditors of his grantee who holds by conveyance made during the twelve months succeeding the sale. We will not now consider these questions as they do not arise in this case. No creditor other than the creditor of the grantee redeemed or attempted to redeem here. The controversy is solely between- the assignee of the purchaser at the foreclosure sale and the purchaser at the execution sale made in pursuance of the redemption, and as between them the redemption was legally and properly made.

The decree of the circuit court will be affirmed. Costs in this "court will be adjudged against William F. Nolker.

Decree affirmed.