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Longstreet v. Morey

OPINION FILED JUNE 13, 1977.

JOHN M. LONGSTREET, PLAINTIFF-APPELLANT,

v.

WALTER T. MOREY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Macon County; the Hon. ALBERT G. WEBBER, III, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

This is a suit over land.

Longstreet filed suit to establish his right to certain land in Macon County. In the first count, he alleged that the various defendants owned only a terminated life estate in the property and that he, as remainderman, is entitled to possession. In count II, Longstreet collaterally attacks a foreclosure decree, and subsequent sale, on the ground that the court lacked personal jurisdiction over him. In count III he seeks to disaffirm a mortgage signed by him during his minority. All three counts were dismissed and Longstreet appeals.

We affirm dismissal of counts II and III, but reverse the dismissal of count I and remand.

The complaint alleged the following: Longstreet's father was the owner of a life estate in the property and he, plaintiff, was the remainderman. On August 29, 1932, plaintiff and his parents signed a mortgage and two notes in the amount of $253.33. Plaintiff was a minor at that time. The mortgage, held by M.W. Iles, was recorded.

About November 10, 1934, Iles filed suit to foreclose. Plaintiff and his parents were named as defendants and a return of summons was made showing the three had been personally served. Plaintiff Longstreet denies that he was actually served.

A decree of foreclosure was entered February 15, 1935. Judicial sale was held March 23, 1935, and the property purchased by Karl Volhmer. On March 24, 1936, the property was redeemed by H.H. Morey, the assignee of a judgment creditor of plaintiff's father. On April 15, 1936, H.H. Morey received a sheriff's deed, which was recorded. The present defendants are Morey's children, who claim title in fee simple, through the sheriff's deed. The other defendants are tenants on the property.

Count I alleges that H.H. Morey, as assignee of a judgment creditor of plaintiff's father, acquired only the ownership interest of the father, which was a life estate. Plaintiff's father died October 26, 1973. Plaintiff requests that he be declared owner in fee simple of the property.

Count II says that the foreclosure decree was void for lack of personal jurisdiction because plaintiff was never served with summons.

Count III seeks to disaffirm the original mortgage and notes because plaintiff was a minor at the time they were signed. He alleges that, when he first became aware of the foreclosure in 1935 or 1936, he consulted with attorneys who told him that: (1) there was nothing he could do until after the death of the life tenant; and (2) since he was a minor at the time of the signing, his interest would be preserved.

• 1, 2 COUNT I. The narrow question presented here is whether a judgment creditor of the life tenant acquires title in fee when he redeems the property en masse or whether he acquires only the title of his judgment debtor.

Plaintiff cites Schroeder v. Bozarth (1906), 224 Ill. 310, 79 N.E. 583, a case which is virtually identical to this one in terms of events, participants and time span. As here, the owners executed a mortgage, it was foreclosed and the owners did not redeem. A judgment creditor of the life tenant did redeem the propery en masse. The life tenant died 30 years later and the heirs of the remaindermen filed for partition. The supreme court held that a judgment creditor who redeems after a foreclosure sale can only acquire the title of his judgment debtor, even though he redeems en masse. The effect is to remove the encumbrance from the property but the creditor had no ability to acquire the title of those not his debtors.

Although no more recent case involving life tenants and remaindermen has been found, the supreme court in 1952 applied the same rule to another multiple interest (joint tenancies) in Wojcik v. Stolecki (1952), 411 Ill. 443, 104 N.E.2d 288. In that case the court noted that it was the established method for the creditor of one co-tenant to redeem the whole, although he only acquires the title of his debtor and frees the interest of any other owner from the lien of the sale.

Defendants cite numerous cases which contain language to the effect that a judgment creditor who redeems acquires all the rights of the purchaser at the foreclosure sale. The purchaser here, if no redemption was made, would have obtained a fee simple title. None of the cases cited involve ...


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