Eggleston v. Hadfield , 90 Ill. App. 11 ( 1900 )

Mr. Justice Adams

delivered the opinion of the court.

The theory of the complainants’ bill is, apparently, that they, having become the purchasers of the mortgaged premises at the foreclosure sale, under the decree of foreclosure of the second mortgage, had the right to advance money to Stevens, the receiver, to pay the interest on the amount secured, to be paid by the prior mortgage, or trust deed, and taxes on the premises, and that Hadfield having, by acceptance of the warranty deed from the owner of the equity of redemption to him, assumed and agreed to pay the sums secured to be paid by the trust deed and the mortgage, they are entitled to be subrogated to the right of Hadfield, as the owner of the equity of redemption, to any money in the hands of the receiver equitably due to Had-field. They also seem to claim some right in the premises by reason of their being sureties on the bond of the receiver. We are aware of no authority for the proposition that a purchaser of premises at a foreclosure sale under a second mortgage, has any right of recovery either at law or in equity against a grantee of the equity of redemption, who has assumed to pay the amount, payment of which is secured by the prior mortgage.. The indebtedness of the party so assuming is to the prior mortgagee.

In Stevens v. Hadfield, 76 Ill. App. 420, in which case appellant Eggleston was a party, and claimed the funds in the hands of receiver Stevens, on the ground that he was a purchaser of the premises at the foreclosure sale, and that Hadfield had assumed payment of the prior incumbrance, the court held:

“ Appellant Eggleston has no claim to the fund by reason of his being a purchaser at the foreclosure sale. He took the estate subject to all prior liens, and he was required to know that the mortgagor, or owner of the equity of redemption, would be entitled to the possession and rents of the premises pending the running of the period of redemption.”

Receiver Stevens and Eggleston appealed from the judgment of this court, and the Supreme Court affirmed the judgment. Stevens v. Hadfield, 178 Ill. 532.

The purchaser of premises at a foreclosure sale under a second mortgage, acquires an interest in the equity of redemption only, and presumably bids no more than the premises are worth in excess of the amount secured by the prior incumbrances. Dodds v. Snyder, 44 Ill. 53.

Complainants, by voluntarily advancing money to the receiver to pay interest and taxes, acquired no rights as against appellee Hadfield.

The decree will be affirmed.