Elser v. Williams

Mr. Presiding Justice Waterman delivered the opinion of the court. The assignee of a mortgage takes it subject to all the equities existing in favor of the mortgagor, and upon a proceeding to foreclose said mortgage, the grantee of the mortgagor may avail himself of all equities existing at the time of the conveyance in favor of the mortgagor. Olds v. Cummings, 31 Ill. 188-191; McCormick v. Buehler, 67 Ill. App. 73-76; same case, 169 Ill. 269-275; Chicago Title & Trust Co. v. Aff, 183 Ill. 95. The evidence does not show that either John 0. Young or appellee assumed the payment of the mortgage in question. The mere recital in a conveyance that it is subject to a certain incumbrance is not an assumption by the grantee of the payment of such incumbrance. Crawford v. Nimmons, 180 Ill. 144-147. It does not appear that the incumbrance was deducted from the consideration of the conveyance to James B. Young, while it does appear that Johp C. Young, the grantor of appellant, before the conveyance to him, told him that there was but $500 owing upon the incumbrance and that was all he, Williams, would have to pay. The fact that James B. Young, the maker of the note, who-obtained the loan from Breyer & Company, filed with the receiver of their insolvent estate a claim for the amount standing to his credit upon their books, does not conclude appellant. It does not appear that James B. Young has received anything upon such claim or that it is of any value. Should James B. Young, upon the claim by him filed against the insolvent estate of Breyer & Company, appear likely to receive something thereon, it may be that appellant can successfully intervene in the proceedings against the insolvent estate of E. S. Breyer & Company, and have paid to him any dividend which may- be declared upon the claim of James B. Young filed against such estate, because the note made by James B. Y"oung is the foundation of the credit standing to him on the books of said firm, and that note is held by appellant and has not been paid. - We find in the decree of the Superior Court no error warranting a reversal thereof, and’it is affirmed.