Stevens v. Plummer ( 1915 )

Mr. Justice Baker

delivered the opinion of the court.

The evidence taken before the master sustains the findings of the court, and the question presented is as to the jurisdiction and authority of the court to vacate the first order of distribution and enter the order from which this appeal is prosecuted, and the propriety of the order.

The presumption of law is, in the absence of proof to the contrary, that the Neise trust deed executed by Martha E. Trundle, and the Barnard judgment against William T. J. Plummer, were subsisting and valid liens—the trust deed on the whole, and the judgment on the undivided one-half, of the real estate. Graham v. Anderson, 42 Ill. 514; Norton v. Joy, 6 Ill. App. 406.

The statute requires the court, in a decree for partition, to “ascertain and declare the rights, titles and interest of all parties to such suit”; but the holder of a judgment against one of the parties in interest has no right, title or estate in the lands.

The claims and legal obligations against the estate sought to be partitioned should be borne by the shares set off to the several owners, or, in case of a sale of the land, should be paid from the fund; but provision to that effect may be made by the confirmatory decree and need not be contained in the decree for partition. Brown v. Sunderland, 251 Ill. 523.

“If (in a partition case), upon the coming in of the report of the commissioners, it is found necessary to sell the land, the court may ascertain the amount due on the mortgage debt, and order it paid out of the distributive share of the mortgagor in the proceeds of the sale. But that may be done even after the sale.” Spencer v. Wiley, 149 Ill. 56-59.

If in a partition case the land is sold subject to the lien of an existing mortgage, the decree of sale should state the amount due, in order that the purchaser may know what obligations are standing against the land he purchases. If sold free and clear of an existing mortgage, it is unnecessary for the court, prior to the decree of sale, to ascertain the amount of the incumbrance, because, in such case, whatever the amount may be it follows and attaches to the proceeds of the sale. Kilgour v. Crawford, 51 Ill. 249.

Where a bill for partition alleges the existence of a mortgage on the premises and the mortgagee fails to appear and produce proof at the hearing of the amount due on the mortgage, then if a sale is necessary the proper course is to decree a sale of the premises free and clear of the lien of the mortgage, and direct the proceeds to be brought into court, when the court may enter a rule that the money be paid within a certain time unless the mortgagee should, before that time, make proof of the mortgage and the amount due thereon. Kilgour v. Crawford, supra.

Where a bill is taken as confessed in a partition ease, if the court has reason to believe, or from any cause is apprehensive, that injustice is likely to result from ordering a distribution of the proceeds of the sale without proof, then it should be required. Sullivan v. Sullivan, 42 Ill. 315.

Barnard, by failing to answer, admitted only the truth of the allegations of the bill. The bill alleged the execution and recording of the Neise trust deed, and alleged that it was in full force, alleged that Barnard recovered a judgment against William T. J. Plummer, on which execution had been issued and returned unsatisfied, and alleged that the judgment was unsatisfied of record.

The facts stated in the bill clearly showed that injury was likely to result to the owner of the judgment and the owner of the note secured by the Neise trust deed if, without proof, the court ordered the proceeds of the sale distributed without making provision for the payment of the note or judgment. The proper practice, under the facts appearing in the record, would have been to enter a rule that the money be paid as provided in the decree of distribution unless the judgment creditor and the owner of the note secured by the Neise trust deed should appear by a certain time and make proof of the judgment and mortgage; and the court should have required proof as to the rights of Barnard before entering a decree of distribution. He had a right to be heard before a distribution of the proceeds of the sale was made. Ellis v. JDumond, 259 Ill. 483.

The motion to vacate the decree of distribution was made two days after the decree was entered and at the same term, and the hearing of the motion was continued.

We think the decree appealed from was properly made in furtherance of equity and justice, and it is affirmed.

Affirmed.