106 US 163 Mason v. Northwestern Mut Life Ins

106 U.S. 163

1 S.Ct. 165

27 L.Ed. 129


November 20, 1882.

This is an appeal from the circuit court for the northern district of Illinois. The suit below was a bill in chancery to foreclose a mortgage brought by the insurance company against Murphy and others. Murphy, the mortgagor, after making the mortgage, had assigned the property to Edward G. Mason, the appellant, and Mason was made a party to the foreclosure suit with a view to barring his equity of redemption. On the second day of January, 1877, a decree was entered for the amount of the money due on the mortgage, and directing H. W. Bishop, a master in chancery of the court, to sell the property, and to make such sale 'in accordance with the course and practice of this court.' The master, in due time, reported the sale of the property to the complainant, which report and sale were, on the thirty-first day of July, 1877, confirmed. The decree of confirmation contained a clause that the defendants, including Mason, 'be forever barred and foreclosed of all equity of redemption in or to said property,' and directed the commissioner to make a deed and deliver possession to the purchaser. From this decree Mason, in proper time, took the present appeal.

E. G. Mason, for appellant.

M. S. Hoyne, for appellee.


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The error relied on to reverse the decree is the absolute foreclosure of the equity of redemption, without allowing the time for that purpose which the statute of Illinois provides. The case comes directly within that of Brine v. Ins. Co. 96 U. S. 627. Indeed, it is stronger, for while in that case we took the admission of counsel on both sides that 'a sale in accordance with the course and practice of the court' meant a sale which did not admit of any equity of redemption, we have in this case a decree of confirmation of the sale which expressly and in the strongest terms cuts off all such right. In accordance with the principle settled by this court in the case of Brine v. Ins. Co. both these decrees were erroneous.


It is, however, urged as a reason for not applying that principle in the present case, that the appeal was not taken until after the period had elapsed within which the appellant could by the statute have exercised the right of redemption, and that he has neither paid nor tendered the sum necessary to redeem. The cases of Suitterlin v. Ins. Co. 90 Ill. 491, and Burley v. Flint, decided at the last term of this court, are relied on in support of this view.


The first of these cases was a suit in the state court of Illinois to obtain the benefit of the right of redemption from a sale under a foreclosure decree in the circuit court of the United States for the northern district of Illinois. The supreme court of Illinois refused the relief asked because the plaintiff in that court had made no effort to redeem within the statutory period; a ruling which this court, in the case of Burley v. Flint, held to be sound. The reason for this is that, while not seeking to reverse the decree under which the sale was made, nor to set aside the sale, the proceeding recognized both as valid, and undertook to assert the right of the party to redeem, as though the sale had been made in accordance with the statute of Illinois. This right, of course, could only be secured by a strict compliance with that statute, and having permitted the period to elapse within which he had a right to redeem, he came too late. The court very properly dismissed the bill.


In the case of Burley v. Flint this court approved and adopted the views of the Illinois court and applied the principle to the case of a bill of review which sought the same end. The bill was filed after the period of statutory redemption, and without any tender of the amount necessary to redeem within that time.


Both these cases differ from the present one in that they were efforts to enforce the right of redemption outside of and against the terms of the decree, while the present case seeks by an appeal to reverse and set aside the decree. In the former cases equity required that before coming to the court for the relief which plaintiffs asked, they should have done what the law required of them, or go at least so far as to offer, within proper time, to pay the redemption money. Not having done this, the court very properly refused to permit them to exercise this right after that time had passed, and with it the right to redeem. In the present case the appellant has exercised his right of appeal from the decree within the time allowed to him by the laws of the United States for that purpose. He has, therefore, rightfully brought this case before us for review. His right to do this does not depend upon any offer to redeem within the 15 months allowed by the Illinois statute, but is an absolute right which we cannot refuse or deny. As it is apparent from the face of the decree, and from what we have said in the case of Brinc v. Insurance Co., that both the original decree of sale and the subsequent decree of confirmation are erroneous in refusing to allow the right of redemption under the statute, they must be reversed. If anything were necessary to add force to this reasoning, it would be found in the fact that the appellant Mason, in his answer to the original foreclosure bill, expressly referred to the statute of Illinois, and asked that any decree made in the case should make provision for redemption within 15 months after the sale.


The decree for sale and the decree of confirmation of the circuit court are reversed, and the case remanded to that court for further proceedings in accordance with this opinion.


Mr. Justice HARLAN, being absent at the argument, took no part in the decision in this case.