People ex rel. Bethmann v. Bowman

Mr. Justice Phillips

delivered the opinion, of the court:

It appears from the record in this case that a sale was made by the master under a decree of foreclosure and a certificate of purchase was issued. Subsequently, on the 22d day of June, more than fourteen months after such certificate of sale was issued, the mortgagees sold and conveyed their right of redemption to a judgment creditor-. The certificate of purchase issued on the mortgage sale was assigned to the relator. The judgment creditor, who acquired the right of redemption from the mortgagors, redeemed from the sale under an alias execution issued on a judgment in his favor, recovered before the decree of sale. A levy was made under the execution of that judgment creditor, who redeemed, and a sale under the execution and redemption was made for the amount of the redemption and the debt of the judgment creditor. That sale was made more than fifteen months after the expiration of the time of redemption under the certificate made on the mortgage sale, but the redemption was made within the fifteen months from the time of the sale under the mortgage. The relator, who holds the certificate under the mortgage sale, asked leave to file a petition in mandamus against the master in chancery to compel him to execute a deed in accordance with that certificate.

As a matter of practice the application for leave to file a petition for mandamus should have been denied. Where a certificate of sale is issued by an officer of a court, such as the master in chancery, that officer, on notice, is before the court at all times, and may by the chancellor be compelled to discharge his duty in a summary proceeding to be heard before the chancellor, and such summary proceeding is a proper remedy to be resorted to to compel the execution of a deed under a certificate of sale, where one is entitled to such deed, and not a resort to a proceeding by mandamus. If the latter method is to be invoked, confusion in the determination of business by the chancellor and complication of the records would necessarily result, which could be avoided by a proper resort to a summary proceeding before the chancellor to compel his officer to comply with his duties. It might well be held that in a case of this character resort cannot be had to a proceeding by mandamus, and the petition for mandamus would have been obnoxious to a general demurrer for these reasons.

As a matter of practice we have deemed it proper to ' consider these two questions that arise from an examination of this record but are not raised by assignment of error on the part of the plaintiff in error or by assignment of cross-errors.

The theory of the relator is that, the bill having been filed by mortgagee against the mortgagor and B. Goedde, a judgment creditor of the mortgagor, the judgment creditor was not entitled to redeem after the expiration of one year, as the decree found. It was held in Boynton v. Pierce, 151 Ill. 197: “Where a party files a bill to foreclose a mortgage, and there are judgment creditors who have liens against the mortgaged premises subsequent to the mortgage, the judgment creditors are necessary parties to the bill to foreclose, but it has never been understood because they may be made parties defendant to a bill to foreclose the mortgage they lose their right to redeem as judgment creditors.” In this case it appears that B. Goedde had recovered a judgment against the mortgagors before the foreclosure of the mortgage, hence he, as a judgment creditor, was a proper and necessary party to that proceeding. But the decree rendered in this case did not deprive him of dny right conferred by the statute upon a judgment creditor to redeem from the sale. The right conferred by statute on him as a judgment creditor was not cut off or abridged by reason of his having been made a party to the bill to foreclose, nor by virtue of anything found in the decree. Wood v. Whelen, 93 Ill. 153.

It is contended, however, by the plaintiff in error, that because of the fact that after the expiration of twelve months and before the expiration of fifteen months said Goedde obtained a deed from the mortgagors to the lands sold under the decree of foreclosure, he could not, as a judgment'creditor, redeem his own lands. This position is not sound. The mortgagors themselves could not redeem after the expiration of twelve months, and the creditor who took title from the mortgagors to whatever interest they had under their deed, obtained no greater right than they had, and that deed conferred no right of redemption. The judgment creditor, as such, had a right of redemption before the execution .of the deed, and the deed effected no merger of his judgment in the title so as to prevent such redemption. As held in Boynton v. Pierce, supra: “Where a debtor becomes involved and is unable to pay his debts, and the creditors resort to a sale of lands on judgment, it is always desirable that the lands should bring as large a price as possible, in order that all creditors may be paid; hence the law favors redemptions by judgment creditors.” Under the redemption made by the judgment creditor, and sale thereunder, he bid the full amount necessary to redeem, as well as the amount of his judgment, and the holder of the certificate under the mortgage sale obtained the full amount to which he was entitled, and has no equitable right to a deed. Neither has he any legal right to a deed under the facts appearing in this record.

It was not error in the circuit court of St. Clair county to deny the writ and enter judgment for costs against the relator.

The judgment is affirmed.

Judgment affirmed.