Bronson v. American Type Founders Co.

Mr. Justice Baker delivered the opinion of the court. This is an action at law and the question presented is, whether by the purchase of and transfer to the mortgagee of the printing press in question the mortgage was extinguished and the debt thereby secured paid by operation of law. A similar question was before our Supreme Court in Merritt v. Niles, 25 Ill. 282. In that case Merritt gave a chattel mortgage upon a printing press to one Horner and a second mortgage thereon to Niles. The press before either mortgage became due was sold on an execution against the mortgagor to Niles, the holder of the second mortgage, who paid off the first mortgage and then sued Merritt at law upon the note the second mortgage was given to secure, and recovered a judgment for the amount of such note, which was reversed by the Supreme Court. In the opinion in that- case it was said: “The mortgagor of a chattel, having the right of possession for a definite period, has an interest which may be sold by execution. The purchaser under the execution acquires thereby the right of possession and the absolute ownership, subject to the encumbrance. Niles, in this case, was an encumbrancer prior to the execution, and so was Horner. Niles, by his purchase under the execution, acquired the right of immediate possession of the property, and the absolute ownership also, subject only to his own and Horner’s encumbrance. By extinguishing these encumbrances, Niles became the absolute and undisputed owner, as a stranger would have been who had purchased at the sheriff’s sale, and discharged the encumbrances. By paying off Horner’s mortgage and taking the property into his possession as his own, his own encumbrance was thereby extinguished, for he could not subject the property in his own hands to its payment; he could not foreclose against himself, or sell the property to pay himself. He was paid by operation of law.” So far as the question now under consideration is concerned, we are unable to perceive any material difference between the facts of the two cases. The fact that Horner had a first mortgage in that case which Niles paid off after his purchase at execution sale, is immaterial. The Horner mortgage was not affected by the sale of the mortgaged property to- Niles; nor was the Niles mortgage affected by the payment of the Horner mortgage by Niles. Nor is the fact material that in that case the mortgagee purchased the property at execution sale upon a judgment against the mortgagor, and in this case by private contract with a remote vendee of the mortgagor. The Moline Printing Company had the same right to the press here involved that Merritt had to the press involved in that case—the right of ownership and possession, subject to the mortgage. The right and interest in the mortgaged property acquired by the plaintiff by the sale in this case was the same as that acquired by Niles in the mortgaged property by the sale to Mm. The question whether the Niles mortgage was extinguished and the note thereby secured paid, was directly involved in that case in an action at law upon such note by the mortgagee against the mortgagor and maker of the note, and it was held that by the purchase by Niles of the mortgaged property his mortgage was extinguished and the debt thereby secured, “paid by operation, of law.” The decision upon that question is not affected by the fact that in the opinion another question is discussed and another ground suggested for the reversal of the judgment. Upon the authority of that case we hold in this case that by the purchase by appellee of the mortgaged property, the mortgage of appellee thereon was extinguished and the debt thereby secured paid by operation of law. The judgment of the Superior Court will be reversed, but the cause will not be remanded. Reversed.