Essley v. Sloan

Pillsbury, J. We quite agree with the court helow that, under the averments of this hill, Ballard, the owner of the equity of redemption in the mortgaged premises, is in no position to derive any benefit from the fact that the loan from McKinney to Essley was tainted with usury. The copies of the deed from Essley to Drury .and from Drury to Bigelow, made a part of the bill by direct reference, shows, presumptively at least, that the amount of the trust deed to Bassett ivas deducted from the purchase money. The conveyance by Essley is made subject to such trust deed by its terms, and nothing appearing upon the record to disclose usury in the loan, it must he presumed that Essley intended to subject the land to the payment of the trust deed according to its terms. There does not appear to have been any concealment tty Essley from his grantee of the nature of the incumbrance, nor that no deduction was made from the purchase price because of it. The grantee, therefore, took the land subject to the payment of the trust deed, not by operation of the law merely, but by the express agreement of the parties to the conveyance, and so far as it appears, without any authority from Essley to interpose the defense of usury, thus bringing the case within the principles announced in Henderson v. Bellew, 45 Ill. 322, and Valentine v. Fish, Ibid. 462, where it is held that in such case the defense can not be made, as the vendee can not be alloived to say that the contract of the vendor with the mortgagee was not obligatory upon him. While it is said in some of the earlier cases that it was essential to the right of the vendee to plead usury that he should be expressly authorized hy the mortgagor so to do, it would seem from the later decisions that this authority may be implied as well as expressed — Maher v. Lanfrom, 86 Ill. 522, where it is held that such authority will be implied when the grantee takes the land subject to the mortgage by operation of law alone, having no actual notice of the incumbrance, and there being no account taken of it in fixing the amount to be paid for the premises. From the arguments of counsel filed in this court it would seem that the question of the right of Ballard to rely upon the defense of usury was made the principal issue between the parties in the court below upon the argument of the demurrer, and the other questions arising upon the face of the bill, and affecting the equities of the complainants, were treated as of minor importance; otherwise we can not account for the action of the court in refusing to retain the bill. The bill states the existence of the mortgage and that Ballard is the owner of the equity of redemption which, under the authority of Barnard v. Cushman, 35 Ill. 451, is sufficient prima, facie to constitute a good bill for redemption. But this bill goes further; it alleges a tender of the amount complainants claim to be due and avers a readiness and willingness to pay any sum the court may find equitably due, and asks the court to ascertain the amount, and upon payment of the same the note be surrendered and the trust deed discharged. Whether a sufficient amount has been tendered will only-affect the question of costs, and is not conclusive upon the right of redemption. Barnard v. Cushman, supra. The right of redemption is so firmly engrafted upon the law of mortgages, and so fully protected and enforced, that the mortgagor’s solemn agreement that upon non-payment the estate shall be forfeited is held utterly void in equity: 2 Story’s Eq. Juris., § 1019; and in East India Co. v. Atkyns, Comyns, 374, it is said that if a man make a mortgage and covenants not to bring a bill to redeem, nay, if he goes so far as in Stisted’s case, to take an oath that he will not redeem, yet he shall redeem. See also, Willets v. Burgess, 34 Ill. 494. His only remedy after condition broken is in a court of equity. His estate at law is gone. He, in our State, is not the owner of the fee after breach of condition, and can not defend in ejectment nor maintain ejectment if the mortgagee be in possession. And therefore, in case of trust deeds with power of sale, he must either submit to pay whatever the cestui que trust may demand, or have his equity of redemption sold beyond any power of reclamation if he can not appeal with success to the court of equity to protect that right which originated in that tribunal. Under the strictest rules of equity we think this bill contains every allegation necessary to entitle Ballard to the right to redeem, and that it was error not to retain the bill, ascertain the amount due by reference to the master, and enter a decree that upon payment of such amount by him by a certain time to be fixed by the court, that the lien of the trust deed be discharged, or in default of its payment that the bill stand dismissed. The point has been made that Essley is not a proper party to the bill. As the bill shows that he made various payments upon the note and account is asked, we think he is a proper party enough, although perhaps not a necessary party. 2 Jones on Mortgages, Sec. 1098; Valentine v. Fish, supra. The fifty acres released by Bassett was also advertised to be sold with the residue of the premises, and it is admitted by the demurrer that it would have been sold if the defendant had not been enjoined. The averments in the bill show that Ballard bought this fifty acres with the other land, but the deed from Essley to Drury does not seem to include it. If Essley still owns it, his right to an injunction would seem to be clear, in order to prevent a cloud upon his title, and the same may be said of Ballard if he purchased it. However, as the decree will be reversed, the bill, in this particular, can be amended so as to make the matter clear. For the reason stated the decree will be reversed and the cause remanded. Decree reversed.