Elliott v. Magnus

Mr. Justice Sears deliveeed the opinion of the Couet. Appellant complains that the receiver was permitted to apply rents collected after the foreclosure sale of the mortgaged premises to the payment of liens upon the property for taxes, and contends that the moneys,so expended should have been applied first to the satisfaction of the deficiency decree, and then whatever balance remained should be applied upon the judgment of appellant. In support of this contention counsel cite Davis v. Dale, 150 Ill. 239. In that case it was held that one who purchased at foreclosure sale necessarily took the estate charged with all its infirmities of title and subject to all prior liens, and this although the mortgagee or cestui que trust was the purchaser and there were covenants in the mortgage or trust deed for payment of all taxes by mortgagor; and that after a sale by which the mortgage debt is satisfied, the mortgaged premises are no longer under the operation of the mortgage, but that the mortgagor is then entitled to the rents and profits during the period of redemption. That case is clearly distinguishable in facts from the case here under consideration. In that case the taxes sought to be paid out of the rentals accruing from the mortgaged property during the period of redemption, were taxes which became a lien after foreclosure sale. Here the taxes were a lien before sale, and at time of sale the court had ordered such lien paid by the receiver. In the Davis case the premises sold for enough to extinguish the mortgage debt, and there was no excuse for a continued possession by the receiver. Here there was a deficiency. In that case the right of the court, through its receiver, to control rents and profits accruing after foreclosure sale, was challenged by the mortgagor’s executor, who had the right to such rents and profits, if the receiver had not. Here the right is challenged by a judgment creditor, who could in no event be entitled to payment from rents and profits, whether the receiver was entitled to them as against the mortgagor or not. Fifield v. Gorton, 15 Ill. App. 458. We do not regard Davis v. Dale as applicable to the facts here. Neither appellant nor the mortgagor made objection to the order that the receiver pay the tax liens in question. As a judgment creditor appellant can, in this proceeding, look to the land itself and proceeds of its sale, if sufficient, for satisfaction of his judgment, but he has no equity to reach the rents. and profits. No such question is raised here as would be presented were the mortgagor to question the propriety of the application of the rents. But the mortgagor is apparently satisfied. The decree is affirmed.