1. Where lands have been mortgaged, and parcels thereof
subsequently sold at different times to different purchasers, the
order in which such parcels shall be subjected to the satisfaction
of the mortgage is, where the rule is established by a statute or
by the decisions of the courts of the state where the lands lie, a
rule of property binding on the courts of the United states sitting
in that state.
2. In Illinois, the rule has been established by the supreme
court of that state, in
Iglehart v. Crane, 42 Ill. 261,
that the parcels first sold should be last subjected to the
satisfaction of the mortgage.
3. The decision in
Brine v. Insurance Company,
96 U. S. 627, that
the decree of the circuit court of the United states sitting in
Illinois, in a suit to foreclose a mortgage of lands in that state,
must give effect to the equity of redemption after sale, as
provided by the statutes of that state, reaffirmed.
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is a suit in chancery to foreclose a mortgage executed by
Henry H. Walker and Samuel I. Walker to Nathan Powell, the
appellee, covering forty acres of land in Cook County,
Page 98 U. S. 177
Illinois. The mortgage was given April 8, 1869, to secure the
payment of the sum of $40,500. The amount due at the date of the
decree had been reduced by payments to $14,853.33. As they were
made, releases had been executed as to part of the land, and before
the suit was brought, all the land had been conveyed, in distinct
parcels, at different times, to various parties, and among them to
Emerson G. Orvis, the appellant. The court, in its decree, ordered
that these parcels should be sold separately, and in the inverse
order of the dates of the conveyances made by the Walkers, until
the amount due, as ascertained by the decree, was satisfied, so
that the parcels first sold should be the last subjected to the
satisfaction of the debt. The decree made no provision for
redemption after sale, as required by the statute of Illinois.
Three principal errors are assigned here:
1. That the decree should have subjected all the property on
which the mortgage was a lien equally, and without regard to
priority of conveyances by the mortgagors.
2. That the court erred in determining the order of these
priorities.
3. That the decree made no provision for redemption after
sale.
As regards the question raised by the first of these
assignments, we are relieved from any discussion of what is the
true, equitable rule on the subject, because we consider that when
such rule is adopted it is, within the decisions of this Court, a
rule of property affecting the title to real estate, and as such is
to be governed, in its application in this Court, by the law of the
state where the land lies. In a case where no statute of the state
makes provision on the subject, and no decisions of the state court
have established a rule, it would be our duty to inquire what is
the doctrine of the equity courts on the subject.
The Supreme Court of the State of Illinois having, in
Iglehart v. Crane, 42 Ill. 261, announced on very full
consideration the rule which was followed by the circuit court,
there was no error in that court in following it.
In regard to the order in which the parcels of the land are
subjected to sale, it is to be observed that no one can
complain
Page 98 U. S. 178
but Orvis, because he is the only party who has appealed from
the decree.
So far as Orvis is concerned, the only error assigned which
seems worthy of notice is that block 18 should have been subjected
to plaintiff's debt first, because Walker, the mortgagor, was still
owner of an equitable interest in it. This does not appear by any
written instrument, but so far as it is established at all, it is
by Walker's parol testimony. It thus appears, however, that
Colbaugh and Powell held the title in trust to secure money
advanced by them on a sale which had been rescinded, and it was by
virtue of this rescission that Walker had any interest in it. What
the amount of the sum is for which Colbaugh and Powell held it is
not shown, nor is the value of the lot. But appellant's witness,
Walker, states that the debt due these parties is more than the lot
is worth, after paying some liens on it prior to theirs. As the
title of Walker had passed from him to this lot long before that
claimed by Orvis, we do not believe that the court was bound to
prosecute an inquiry, through all the ramifications of Walker's
dealing with this lot, dependent solely on conflicting oral
testimony, to ascertain if Walker had a possible ultimate interest
in it. Nor does it consist with the general course of equity
practice to order a public sale of a very doubtful contingent
interest, the value of which is incapable of estimation, and where
any price given might do great injustice to the purchaser or to the
party whose interest is sold, and which would lead to further
expensive litigation. Besides, if in the end appellant has to pay
any part of this mortgage, there is nothing to prevent his pursuing
this equity of Walker's so far as may be necessary to indemnify him
in an independent suit, where that matter may be fully investigated
without further delaying the present plaintiff.
On the whole, we see no error to the prejudice of appellant in
the order of sale adopted by the decree.
But we decided in
Brine v. Insurance Company,
96 U. S. 627, that
a decree of foreclosure in the Circuit Court of the United states
for the District of Illinois, which gave no time for redemption
after the sale, was erroneous and must be reversed. The larger part
of the briefs of several counsel in this
Page 98 U. S. 179
case is devoted to a consideration of the question there
decided. It is sufficient to say that we are satisfied with the
soundness of the opinion given in that case, and it must govern the
one now before us.
The result of those considerations is, that the decree of the
circuit court ascertaining the sum due the plaintiff, and fixing
the order in which the various parcels of land shall be sold, and
in fact all of said decree, will be affirmed, except so far as it
fails to give a time for redemption, and the case will be remanded
to that court with directions to amend the decree so as to allow
redemption of each parcel which may be sold, as provided by the
statute of Illinois on that subject. As appellant had to take this
appeal to obtain correction of the error in this respect, he must
recover costs.
So ordered.
NOTE -- At a subsequent day of the term, Orvis, the appellant,
was granted a reargument because the question of the order in which
lands mortgaged, and sold subsequently by the mortgagor, to
different parties at different dates should be subjected to the
satisfaction of the mortgage debt, was a new one in this Court, and
because the subsequent sales on which the court had to pass in the
case were numerous and, as presented by the record, a little
perplexing.
MR. JUSTICE MILLER delivered the opinion of the Court ordering
that the same decree be entered that was made on the former
hearing.