Spencer v. Wiley

Mr. Justice Gary. The question arising in this case may be very shortly stated as follows: If, in a partition suit under Chap. 106, It. S., the court finds the sum due upon a mortgage theretofore given by one of the part owners, upon his undivided interest in the whole tract, and adjudges that it shall be charged wholly upon the part set off to the mortgagor or his successor in interest, is the running of the statute of limitations against the incumbrance interrupted, and a new cause of action created upon which that statute begins to run from the date of the partition decree or judgment % The court below answered, as we think correctly, this question in the negative. The facts, in brief, are that in 1873 Wiley executed a trust deed in the nature of a mortgage, conveying the undivided fourth part of twenty acres to secure the payment of a promissory note falling due June 27, 1875. His interest in the property became vested in Sarah Wiley. July 7, 1884, by a decree in a partition suit, Lot 16, on a plat made in the suit, was set off to her. The court found that $17,097.08 was due upon the incumbrance and then follows: “ The court further orders, adjudges and decrees, that the respective interests and rights of the respective parties named herein be set off to the said parties as herein decreed, subject to the respective liens on the respective interests as found and decreed by the court, and that all liens and incumbrances herein named follow and revert to and become a lien on the respective interests in the premises as they shall be set off to the respective owners herein.” That portion of the decree finding the amount, was simply surplusage. If it had become necessary to sell the whole tract, because not susceptible of partition, then in the division of the proceeds, the finding of the amount would have been necessary. Thompson v. Frew, 107 Ill. 478. But. suppose the part of the proceeds to which that incumbrance attached, had been insufficient to pay it, it can hardly be contended that the court, in that suit, could have made a personal decree in favor of the incumbrancer against Benjamin B. Wiley, for the deficiency. As the premises in fact were partitioned, the amount was not in question. The only effect of the decree was to fold up the incumbrance and lay it all upon Lot 16. The bill in this case to foreclose the trust deed was filed April 30, 1890. The note had been due nearly fifteen years; the limitation is ten years, and the answer set that up as a bar, and the decree is affirmed. Dearea affirmed.