Sues v. Leinour

Lacey, P. J.

The question presented in this record is whether the appellee is entitled to dower interest in the rents subsequently accruing, for it is conceded by appellant that she is entitled to dower out of the surplus.

The point of law on which the appellee rests her claim is that the lien of the appellant created by his judgment was only a general one and not specific, and that by the sale of the premises the character of realty was extinguished as to all the surplus, and as against appellant’s judgment the surplus was freed from the general statutory lien, and was and became personal property in the hands of the master, liable to general distribution, after being paid to the administrator, to the general creditors of the estate, and the appellee’s claim being first in order of payment must be paid first.

The court below seemed to take this view of the law, and, therefore in its final decree found “ that the appellant had not made his lien specific before said foreclosure sale, either by sale under or levy of execution issued on his said judgment in respect to the property sold under said decree of foreclosure.”

On the other hand it is contended that the appellant’s judgment lien was made specific by his position in the foreclosure suit, and by the decree oí the court declaring his lien and right to the surplus.

This is one of the questions this court is called upon to decide and the main one. The ease of Pahlman et al. v. Shumway et al., 24 Ill. 128, is relied on by appellee as being in point and as proving the right of her claim here contended for. In that case one Bossiter and wife executed a trust deed to Shumway to secure certain indebtedness, and afterward Shumway sold the premises under a trust deed, and after paying the mortgage there remained a surplus in his hands. There were some judgment creditors of Bossiter, whose judgments were subject to the trust deed wdio had not levied on the land. The surplus was claimed by the judgment creditors and also by the executor of Bossiter, and on a bill of inter-pleader filed by Shumway, and the case going to the Supreme Court, the court decided that the administrator was entitled to the surplus. The court declared that the judgments were liens on the land subject to the trust deed, but that in order to make the claims available the judgment creditors should have caused the lands to have been levied on and sold subject to the deed, but not having done so the sale under the deed reduced the surplus to personalty, to which the general judgment lien did not attach.

We think there is a distinguishable difference between this case and the one cited. In that case the sale took place before any attempt was made to make the lien specific, and the adjudication took place after the sale under the trust deed. In this case the suit of foreclosure was pending, in which suit appellee and appellant were both parties, and in which the appellee put in a claim by way of answer to her dower in the surplus, and the appellant his claim to the amount of his judgment lien on the land to the surplus, and thus the matter stood until the decree of foreclosure was parsed, Dec. 15, 1883, in which the rights of the parties were declared by the court, and the amount and grade of appellant’s lien fixed and the amount of his debt decreed to be paid to him after taking out the amount of the widow’s dower; and because of the uncertainty of the amount, it was decreed to be brought into court subject to the order of court. The next mouth following this final decree, appellee, on 28th January, 1834, was appointed administratrix of the estate of John Althen, deceased, and the proceedings commenced which finally culminated in the final decree awarding her the surplus. Not a word of this claim was heard till after the decree of foreclosure was passed, and no pretense of priority till after the sale, when the claim in question was for the first time made. We think that the decree of foreclosure fixing the lien of the appellant on the realty and on the surplus, had the effect to make it specific, and to establish the rights of appellant to the surplus just as securely as it could have been done by levy and sale. In the foreclosure proceeding the appellant need not file a cross-bill, for he had no right to ask for a foreclosure in his favor on a mere judgment, but did have the right, when made a party to the foreclosure proceedings, to ask to have his interest protected, and to have decree in his favor for the surplus. It was not at all necessary to file a cross-bill. He had a right in his answer to have his lien declared, which was done in this

case. This has been the established and recognized rule in courts of equity in this State for many years. Ellis v. Southwell, 29 Ill. 549; Walker et al. v. Abt et al., 83 Ill. 226; Crocker et al. v. Lowenthal, 83 Ill. 580. It was said in the Ellis-Southwell case above, “ It seems to be the practice on a bill of foreclosure to make all incumbrancers parties, and upon passing a decree of foreclosure to ascertain and settle the right of all the parties, decree the payment of the mortgage debt, and on default, a sale of the premises, and the application of proceeds in satisfaction of each incumbrance according to priority and the payment of any surplus to the mortgagor.” In the case of Sherman v. Skinner above cited, it was held that judgment creditors were necessary parties, and that it was proper for a decree in case of foreclosure to protect their interests and to order the surplus in the master’s hands after paying the mortgage to be paid to such judgment creditors. We can perceive no reason why the lien of the appellant was not made specifically and determinatively as though an execution had been issued on his judgment and a levy made. He manifests his intention to rely on this surplus for the payment of his judgment by claiming it in his answer and obtaining the decree of the court in his favor, and in a case over which the court had jurisdiction and power. After this decree of foreclosure passed, an execution and levy would have been improper and a useless expense and costs, and no doubt would have been restrained if attempted by order of court, if its attention had been called to such an attempt on the part of the appellant. We therefore conclude that the court below had no right to set aside the decree in favor of appellant giving him this surplus. The lien was continued in the surplus by virtue of the proceeding in the foreclosure suit just as effectually as it would have been by levy and sale of the equity of redemption.

It appears that certain moneys are in the hands of the master, received by him for rents becoming due on the property in question between the date of the master’s sale and the time of redemption, and this money is claimed by appellant to be properly applicable to the payment of his..judgment. We think the claim is good, subject, however, to the widow’s right of dower.

This rent would properly go to the heir at law of the deceased, Althen, but as by Sec. 12, Chap. 59, R. S. 1874, the heir in respect to such rents is liable to pay the debts of the ancestor, and liable in this case to pay such rents or the value thereof to appellant if proper suit is brought, and this matter being in a court of equity, it will proceed to appropriate it to the payment of the debt against the ancestor, the appellant herein, and not require the appellant to proceed at law under the statute. The widow not being a “ creditor of the aneestor” in respect to her award, could not claim this rent under such statute. We therefore think that appellant is entitled to this rent, after deducting the one third for the widow’s dower.

For these reasons we reverse the decree and remand the cause, with directions to render a decree in accordance with this opinion.

Decree reversed and cause remanded.