Medley v. Elliott

Mr. Justice Thornton delivered the opinion of the Court: The principal question presented by this record is, are the grantees of a mortgagor protected in their title by possession and payment of taxes, under the first section of the limitation law of 1839; and is the mortgagee thereby barred of foreclosure ? It is the settled law, that in equity a mortgagee has an interest in the premises mortgaged of a personal character similar to the interest which he has in the debt secured. The debt is the principal thing, and the land the incident. The mortgage is only a charge upon the land, and the interest of the mortgagee is a mere chattel interest. Martin v. Mowlin, 2 Burr. 969; Pollock v. Maison, 411 Ill. 516; Runyan v. Mersereau, 11 Johns. 534; Hughes v. Edwards, 9 Wheaton, 489; Eaton v. Whiting, 3 Pick. 484; Wilson v. Troup, 2 Cow. 195. Chancellor Kent said, in Jackson v. Willard, 4 Johns. 40, “ Until foreclosure, or at least until possession taken, the mortgage remains in the light of a chose in action. It is but an incident attached to the debt, and in reason and propriety, it can not, and ought not, to be detached from its principal. The mortgage interest, as distinct from the debt, is not a fit subject of assignment. It has no determinate value. If it should be assigned, the assignee must hold the interest at the will and disposal of the creditor who holds the bond.” It naturally follows, that the statute of limitations which bars the debt, the principal, can alone bar the mortgage, the incident. The note secured by the mortgage was not barred for sixteen years after maturity; the possession set up, was only for eleven years. It was held in Pollock v. Maison, supra, that an action of ejectment could be maintained, or a bill of foreclosure filed, or judgment recovered by scire facias, until the statutory bar of the debt was complete. It is also decided in Harris v. Mills, 28 Ill. 44, that when recovery upon the note is barred, the right of foreclosure is also barred. The converse must be equally true. Besides, the grantee of the mortgagor only succeeded to the estate of the latter. He occupied his position, and took the land subject to the incumbrance of the mortgage. The mortgagor is the owner of the fee until the exercise of the right of entry for condition broken, or until foreclosure. There is a peculiar relation existing between the mortgagor and mortgagee. The former has been termed, while he retained possession, a tenant from year to year, or at sufferance, or a quasi tenant at sufferance, or a tenant at will. 4 Kent, 156; 1 Hill. Mort. 119; Partridge v. Bere, 5 B. & Al. 604. The mortgagor, while he is permitted to remain in possession, may sell or lease the premises, and under such circumstances can not be regarded as a trespasser without some act on the part of the mortgagee. Neither is the assignee of the mortgagor a trespasser in possession. He is a purchaser, with constructive notice of the rights of the mortgagee ; occupies the same position as his grantor; and is subject to the same equities. Either may be treated as tenant or trespasser, upon forfeiture of the condition of the mortgage, at the pleasure of the mortgagee. Dunn v. Rogers, 43 Ill. 260; 1 Hill. on Mort. 123; 4 Kent Com. 157; Hughes v. Edwards, 9 Wheaton, 489; Doe v. Maisey, 8 B. & Cress. 767. The grantees of the mortgagor were never treated as trespassers, and their possession was not hostile to, or inconsistent with, the right of the mortgagee. Partridge v. Bere, supra; Hitchman v. Walton, 4 M. & W. 409; Doe v. Barton, 11 Ald. & Ell. 307. There can be no doubt, that before protection can be afforded, under the limitation law of 1839, the possession must be adverse. It must be hostile in its inception, and so continue. It must be actual, continued, visible, notorious, distinct, and hostile possession. Hawk v. Senseman, 6 Ser. & Rawle, 21; McClellan v. Kellogg, 17 Ill. 503; Cook v. Norton, 48 Ill. 20. The relation of mortgagor and mortgagee; the fact that the purchaser only succeeded to the fights of the former, and with notice of the incumbrance, and the consequent privity between the parties, forbid the conclusion of an adverse possession. The possession must be regarded as in subordination to the mortgage; and it can not cease to be of that character until there is an open disclaimer of holding under it, and the assertion of a distinct title, with the knowledge of the mortgagee. Brown v. Devine, 61 Ill. 260; Geller’s Lessee v. Eckert, 4 How. U. S. 289. The case of Manning v. Warren, 17 Ill. 267, differs from the present in an important particular. The entry, in that case, was under a deed executed by the mortgagor prior to the execution of the mortgage, and, hence, the possession could not be said, with any propriety, to be subservient to the mortgage. As to the payment of taxes, it was the duty of the mortgagor, as well as his grantees, while in possession, to pay the taxes, and no right could be acquired thereby. The mortgagee might well regard such payment as a protection of his interest. Wright v. Langley, 36 Ill. 381. We are of opinion that the record shows a release of all the mortgaged premises, except the land conveyed to appellants, and that the mortgage lien rested upon it. The releases were executed prior to the conveyance to appellants. The heirs of the mortgagor were not necessary .parties, as all the premises mortgaged had been sold and conveyed, and, therefore, they had no subsisting interest in the land. We think that the decree should be affirmed. Decree affirmed.