Stopp v. Wilt ( 1898 )

Mr. Justice Sears

delivered the opinion of the court.

The questions presented are as to the propriety of the, decree, first, ■ in ordering the. amount awarded in the condemnation proceeding to be paid to appellee Wilt, Jr., and,secondly,. id. ordering that appellant, Stopp, release the mortgage upon the property taken in the condemnation suit by appellee, the Northwestern Elevated Bailroad Company.

The first question depends for answer upon the effect which is to be given to the contract entered into between appellant and appellee Wilt, Jr., after the execution and delivery of the deed conveying the premises in question and mortgage upon same to secure part purchase money.

We can see no reason for construing this contract as other than a plain undertaking by appellant, Stopp, in consideration of the purchase of the property by Wilt, Jr., to relinquish to Wilt, Jr., all right to whatever moneys might be awarded in the condemnation proceeding, either for part taken, or as damages to the remainder of property in question. To give effect to this agreement the chancellor could not have decreed otherwise than was done as to the disposition of the money in the hands of the county treasurer.

It is true, as contended, that when the power of eminent domain is exercised, the fund paid stands in place of the land condemned, and a mortgagee’s lien attaches to the fund, and the mortgagee is entitled to have the money in place of the land applied to the payment of his claim. Calumet River Ry. Co. v. Brown, 136 Ill. 322.

But here appellant, after he had ceased to be owner and had become a mortgagee, relinquished to Wilt, Jr., all claim, including as well that under his mortgage as any other, to the fund which stood in lieu of the mortgaged premises taken.

The giving of a bond to secure the disposition of this money in rebuilding, etc., was perhaps equitable and not improper to have been considered by the court under the informal submission of the controversy; but it was not necessary to support the decree awarding the disputed fund to appellee, Wilt, Jr.

The remaining question is as to that part of the decree which orders appellant to release the mortgage in question as to the part of the property taken by appellee, the railroad company. We see no ground for such relief, nor is. there any need of relief. The condemnation suit was pending as against Stópp, the owner, before the contract of sale was entered into by him, and before the mortgage was executed, which was made to carry out such contract. Appellee, the Northwestern Elevated R. R. Co., obtained, by judgment in the condemnation suit, all that it is entitled to as to this property. Under the law of eminent domain, it obtains no right to a deed by owner or release by mortgagee. The mortgagee, Stopp, having been a party to the condemnation suit, the effect of the judgment there was to remove the lien of the mortgage from the land taken to the fund awarded.

The decree is reversed as to so much thereof as directs the release of the mortgage to be executed, and is in all other respects affirmed. Eeversed in part and affirmed in part.