1. Where the circuit court adjudged the sale of mortgaged lands
in Illinois and foreclosed the defendant's right to redeem them
from and after such sale, he waives no error by omitting to tender
the money within the statutory period allowed for redeeming them,
he having within two years after the date of the decree appealed
therefrom.
2.
Brine v. Insurance Company, 96 U. S.
627;
Burley v. Flint, 105 U.
S. 247, and
Suitterlin v. Connecticut Mutual
Insurance Co., 90 Ill. 483, commented upon.
The Northwestern Mutual Life Insurance Company filed Dec. 10,
1875, a bill in the court below to foreclose a mortgage given May
7, 1874, by Murphy and wife to secure his bond to the company for
$40,000. The mortgage covers certain land situated in the City of
Chicago which they subsequently conveyed to Mason in trust for the
benefit of Murphy's creditors. The bill prays for a decree ordering
that payment of the amount due be made, and in default thereof that
the land be sold by and under the direction of the court in
satisfaction of the decree, and that all persons claiming by,
through, or under the defendants or any or either of them be
forever barred and foreclosed of and from all title, interest,
claim, demand, and all right and equity of redemption whatsoever in
or against the land or any part thereof. Mason was made a party
defendant, and he filed an answer setting up,
inter alia,
that the complainant ought not to have the relief prayed for in the
bill inasmuch as the statutes of Illinois provide that land sold by
virtue of a decree of foreclosure may, in the manner which they
prescribe, be redeemed within fifteen months of such sale, and he
prayed the same advantage of the answer as if he had pleaded or
demurred to the bill of complaint. The court, Jan. 2, 1877, entered
a decree for the amount due upon the mortgage, and directing the
master to make a sale of the land in question according to the
course and practice of the court. He reported, July 24, 1877, a
sale of the land to the complainant May 8, 1877, and a decree was
entered July 31, 1877, confirming the sale, ordering him to execute
to the complainant a deed of the land, adjudging the defendants to
be forever barred and
Page 106 U. S. 164
foreclosed from all equity of redemption and other claim, legal
or equitable, of, in, and to the land and every part thereof. Mason
appealed from both decrees, and assigns for error that the court
below erred first in denying to him, by the decree entered Jan. 2,
1877, the right to redeem from the sale thereby ordered, as prayed
for by his answer, and in ordering the sale to be made in
accordance with the course and practice of the court, without
making provision for the redemption after sale; secondly in
confirming, by the decree entered July 31, 1877, the master's sale
made without redemption; in ordering him to execute a deed of the
land before the time of redemption allowed by the statutes of the
state had expired, and adjudging that the defendant should be
forever barred and foreclosed from all equity of redemption and
other claim in and to the land.
MR. JUSTICE MILLER delivered the opinion of the Court.
The error relied on to reverse the decree is the absolute
foreclosure of the equity of redemption, without allowing the time
for that purpose which the statute of Illinois provides. The case
comes directly within
Brine v. Insurance Company,
96 U. S. 627.
Indeed, it is stronger, for while in that case we took the
admission of counsel on both sides that "a sale in accordance with
the course and practice of the court" meant a sale which did not
admit of any equity of redemption, we have in this case a decree of
confirmation of the sale which expressly and in the strongest terms
cuts off all such right. In accordance with the principle settled
by this Court in the case of
Brine v. Insurance Company,
both these decrees are erroneous.
It is, however, urged as a reason for not applying that
principle in the present case that the appeal was not taken until
after the period had elapsed within which the appellant could by
the statute have exercised the right of redemption, and that he has
neither paid nor tendered the sum necessary to redeem.
Burley
v. Flint, 105 U. S. 247, and
Suitterlin v. Connecticut Mutual Insurance Co., 90 Ill.
483, are relied on in support of this view.
Page 106 U. S. 165
The first of these cases was a suit in a local court of Illinois
to obtain the benefit of the right of redemption from a sale under
a foreclosure decree in the circuit court of the United States. The
Supreme Court of that State refused the relief asked because no
effort had been made to redeem within the statutory period -- a
ruling which, in
Burley v. Flint, we held to be sound.
The reason for this is that, while not seeking to reverse the
decree nor to set aside the sale made thereunder, the proceeding
recognized both as valid and asserted the right of the party to
redeem as though the sale had been made in accordance with the
statute of Illinois. This right, of course, could only be secured
by a strict compliance with that statute, and having permitted the
period to elapse within which he had a right to redeem, he came too
late. The court very properly dismissed the bill.
In
Burley v. Flint, this Court approved and adopted the
views of the Illinois court and applied the principle to the case
of a bill of review which sought the same end. The bill was filed
after the expiration of the period of statutory redemption, and the
amount necessary to redeem had not been tendered within that
time.
Both cases differ from the present in that they were attempts to
enforce the right of redemption outside of, and against the terms
of the decree, while the present case seeks by an appeal to reverse
and set aside the decree. In the former cases, equity required that
before coming to the court for the relief which the plaintiffs
asked, they should have complied with the requirements of the law,
or at least offered, within proper time, to pay the redemption
money. Not having done this, the court very properly refused to
permit them to exercise this right after that time had passed, and
with it the right to redeem. In the present case, the appellant has
exercised his right of appeal from the decree within the time
allowed to him by the laws of the United States for that purpose.
He has therefore rightfully brought this case before us for review.
His right to do this does not depend upon any offer to redeem
within the fifteen months allowed by the Illinois statute, but is
an absolute right which we cannot refuse or deny. As it is
Page 106 U. S. 166
apparent from the face of the decree and from what we have said
in
Brine v. Insurance Company that both the original
decree of sale and the subsequent decree of confirmation are
erroneous in refusing to allow the right of redemption under the
statute, they must be reversed. If anything were necessary to add
force to this reasoning, it would be found in the fact that the
appellant Mason, in his answer to the original foreclosure bill,
expressly referred to the statute of Illinois and asked that any
decree made in the case should make provision for redemption within
fifteen months after the sale.
Decrees reversed and cause remanded for further proceedings
in accordance with this opinion.
MR. JUSTICE HARLAN, having been absent during the argument, took
no part in the decision of this case.
