Chicago & Calumet Rolling Mill Co. v. Scully

"Waterman, P. J. In reference to the amount to be paid by -appellant, it is unnecessary to say more than that as that part of the decree depends entirely upon the view that is to he taken of the facts of the case, we see no reason for interfering with the conclusions of the chancellor in that regard. As to the order that the sum fixed should he paid by March, 3891, and that in default thereof the title of appellee become absolute, that portion of the decree is based upon the evidence and the finding in substance that all the money for the conveyance under which appellee obtained title to the property in question, and under v Inch appellant derives all its rights in and to such property, was paid by appellee. Save for the payments made by appellee, appellant never had any title to these premises. The case is not, therefore, one in which appellant has pledged something to secure its promise to pay, but is rather one where it induced appellee to pay for and take title to property, giving to it an opportunity within a reasonable time to acquire from him the title he had. Appellee did not go into court asking to have a mortgage foreclosed; on the contrary appellant sought to enforce what it insisted and now insists, was its right to pay for and take title to a piece of property. By what rule of equity, this price being long since due, is appellant entitled to have the property sold and appellant have twelve months more in which to determine whether it will take the property? Admitting, as is insisted, that Scully was a mortgagee, the practice is not as is contended, that a sale must he ordered. Upon a bill filed by a mortgagor to redeem, there should not be any order of sale; the decree for the complainant in such case is that he pay within a short time, fixed by the court, and that in default thereof, his bill be dismissed. 2 Danioll’s Ch. Pr. 644; Jones on Mortgages, Sec. 1106; 2 Barbour’s Ch. Pr. 199; Bremer et al. v. Calumet Dock Co., 127 Ill. 464; Decker v. Patton, 120 Ill. 464; Pilmon v. Thornton, 66 Me. 469. The form of decree entered in this case has been approved in Bremer et al. v. Canal & Dock Co., supra, and in Kirchoff v. Union Mut. Life Ins. Co., 33 Ill. App. 607-613, which last mentioned case was affirmed in 133 Ill. 368-381. The decree of the Superior Court is affirmed. Decree affirmed.