Statement of the case. and for the balance ($2971.20) he gave to Sweetser his four notes, each for $650, to become due in seven, eight, nine and ten years, and one other note for $371.20, to become due in seven years, all bearing interest at the rate of ten per cent per annum, and secured the same by mortgage made to Sweetser, on the lands sold to him. In the same way Adam Defenbaugh agreed to pay a portion of the purchase money for the tracts of land sold to him, on the Hapgood notes, and gave his notes for the balance of the purchase money, running for a long series of years, secured by mortgage on the land sold to him. Isaac and Adam Defenbaugh went into the actual possession of the lands respectively purchased by them, but never paid any part of the purchase price. Failing to pay any part of the purchase money, or the taxes accruing thereon, an arrangement was afterwards, on the 14th day of October, 1875, made, by which Isaac Defenbaugh reconveyed the quarter section conveyed to him, back to Sweetser, in satisfaction of the note and mortgages executed by him to Sweetser, and also in satisfaction of the amount agreed to be paid by him on the Hapgood note, and for no other consideration. It was expressly agreed this latter conveyance was made subject to the Hapgood mortgages, and Sweetser released of record the mortgage made to him by Isaac Defenbaugh. In the meantime, (that is, on the 10th day of August, 1875,) the National Bank of Pontiac recovered a judgment in the circuit court against Isaac Defenbaugh and others, for $1700, which became a lien on the equity of redemption which the judgment debtor had in this quarter section of land. Afterwards, perhaps on the 19th day of June, 1876, a pluries execution, issued on the judgment in favor of the bank, was levied on this quarter section, and it was sold to the bank, to which the usual certificate of purchase was issued. No redemption from that sale having been made, the sheriff made the bank a deed for the land. It is alleged, and it is no doubt true, that Sweetser had no 17-110 ILL. Statement of the case. actual knowledge of the judgment in favor of the bank when he released the Isaac Defenbaugh mortgage. Defenbaugh did not disclose that fact. It further appears, that on the 21st day of October, 1875, Sweetser sold and conveyed the same quarter section that Isaac Defenbaugh had just reconveyed to him, to Allen Walters, for the sum of $6400, and to secure a part of the purchase money Walters gave to Sweetser his four notes, each for $1100, to become due March 1, 1881, 1882, 1883 and 1884, respectively, with ten per cent interest per annum, and secured the same by mortgage on the land, and also secured the balance of the purchase money ($2000) on another tract of land. These notes of Walters were assigned soon after, and delivered to King & Hamilton, complainants. At the time of the conveyance of this quarter section to Walters, the Hapgood trust deeds or mortgages were known to be an incumbrance on the land, and complainants, King & Hamilton, who were interested in the matter, covenanted with Walters, in writing, to take care of the Hapgood mortgages, so that when Walters paid for the land he would have it discharged from those prior mortgages. Afterwards the Hapgood notes came into the possession of complainants, and were held by them when their original bill herein was filed. It is alleged in the amended bill, that at the time of filing the original bill in this cause, complainants were, and had been for a long time, the legal and equitable owners of all the notes described as having been secured on this land, having derived their title thereto by regular assignments from the payees. It is also charged in the bill, that at the time the bank recovered its judgment against Isaac Defenbaugh and others, both the Hapgood mortgages and the mortgage given by Isaac Defenbaugh to Sweetser, were prior and valid liens on the land, and are still such liens thereon, and that the bank is fraudulently seeking to acquire the title to this quarter section, under the circumstances stated, against the Statement of the case. rights and equities of complainants. It is also alleged that taxes had accrued on the land, and had been paid by the holders of the securities, which were also a prior lien on the land. Allen Walters died December 28, 1878, and his widow and heirs are made defendants to the bill, with the National Bank of Pontiac, Franklin B. Sweetser, Isaac Defenbaugh, and others. The National bank answered the bill, and set up and insisted on its title acquired under its judgment against Isaac Defenbaugh, and denied the ownership of the notes by complainants, as set forth in the bill. Franklin D. Sweetser also answered the bill, admitting all the material allegations, and then filed a cross-bill reciting the fact, and asked to have the Isaac Defenbaugh mortgage foreclosed in his favor, notwithstanding the release of the same on record, alleging the release was procured by fraud, when he had no knowledge of the judgment of the bank against the mortgagor. To the cross-bill, it seems, the circuit court sustained a demurrer, and dismissed it. The minor heirs of Allen Walters answered by guardian ad litem, and the cause being at issue, it was heard by the court on the bill and proofs introduced at the hearing. The court found the facts substantially as they are alleged in the original and amended bills, and decreed that unless the defendant the National Bank of Pontiac pay to complainants the sum of $7983.29, (which sum includes the amount due. on the mortgage from Isaac Defenbaugh to Sweetser, and also the amount Isaac Defenbaugh agreed to pay on the Hapgood notes and mortgages,) and the taxes that have accrued on the land, within ninety days from the date of the decree, it shall thenceforth stand absolutely debarred and foreclosed of and from all rights, title and interest, and equity of redemption, in the quarter section of land. It was also further ordered, that if this money was not paid by the bank to complainants, they should have leave to file a supplemental bill in this cause, foreclosing the mortgage made by Allen Walters, since Opinion of the Court. deceased, to Sweetser, it having been found by the decree that complainants were the holders of the Walters notes and mortgages, as assignees of Sweetser. This decree was affirmed in the Appellate Court for the Second District, where the bank assigned errors, and where Sweetser also assigned for error that the circuit court erred in dismissing his crossbill. The bank brings the case to this court on appeal, but Sweetser has not assigned any errors in this court, and that branch of the case in which he is particularly interested on his cross-bill, is not considered in the opinion of the court. Mr. S. S. LAWRENCE, for the appellant. Messrs. BLANCHARD & BLANCHARD, for the appellees. Mr. JUSTICE SCOTT delivered the opinion of the Court: The only question in this case in which the National bank is interested, is whether it acquired the title to the land in controversy under the levy and sale on the execution issued on its judgment against Isaac Defenbaugh, or whether the land, as against the claim of the bank, is still subject to the mortgage made by Isaac Defenbaugh to Sweetser, and to the sum he agreed to pay on the Hapgood notes. Other questions are made by the pleadings, but as to some of them the court made no decree, and as to others touching which the court did decree, as the parties affected are not now complaining, they will not here be considered. Narrowing the discussion within the limits indicated, it will only be necessary to consider whether the decree made by the circuit court injuriously affects the bank,-the only party that assigns error in this court. If it does not, then it should be affirmed. Other suggestions of error not affecting the bank can not, of course, be considered on its appeal. Opinion of the Court. On looking into the record it is seen that Isaac Defenbaugh, through whom the bank claims the title to the property, never had any interest in it other than the equity of redemption. He bought the land from Sweetser and Stanchfield, subject to the Hapgood notes and mortgages, which it is conceded were then valid, prior liens upon it. It is not claimed that Isaac Defenbaugh ever paid one dollar upon the property. He occupied the land from October, 1871, (the time he purchased the equity of redemption,) until October, 1875, when he reconveyed the equity of redemption to Sweetser alone, in satisfaction of his mortgage for the purchase money, and of the sum he had agreed to pay on the Hapgood notes. During all that time he never paid one cent of the principal or interest of the purchase price, or any of the taxes accruing on the property. When it became apparent he could not pay for the land, by way of foreclosing or cutting off his equity of redemption, it was agreed that Isaac Defenbaugh should reconvey the land to Sweetser, which he did, and thereupon Sweetser released the mortgage of record. No money was paid. It was done in consideration the mortgagor should be discharged from his obligation to pay for the land-nothing else. The bank was in no way injured by the release that was entered of record. It was in no manner deceived by it, nor induced to take any action it would not otherwise have done. Had the release not been entered, it would not be claimed the bank could obtain any title under the levy and sale without paying what its judgment debtor would have to pay before he could have become the owner of the land. The mere fact satisfaction was inadvertently entered on the record did not and could not change the equities of the parties concerned. It was far less expensive to foreclose the equity of redemption which Isaac Defenbaugh had in the property, by a voluntary reconveyance, as was done, than by decree of court. It was better for the interests of the bank, if it intended to redeem the property from the prior incumbrances |