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March 5, 1883


The property involved in this suit is certain real estate in the city of Chicago, covered by a mortgage, executed January 29, 1870, by W. H. W. Cushman and wife to secure the Connecticut Mutual Life Insurance Company in the payment of $75,000 five years thereafter, with interest, payable semi-annually, at the rate of 9 per cent. per annum. The property was thereafter conveyed to W. H. Cushman, subject, however, to that mortgage. The local law, in force when the mortgage was given, provided that upon a sale of lands or tenements, under execution, the officer should give to the purchaser a certificate showing the property purchased, the sum paid therefor, or, if the plaintiff is the purchaser, the amount of his bid and the time when the purchaser (unless the property be redeemed as provided in the statute) will be entitled to a deed. A duplicate of such certificate, signed by the officer, is required to be filed by him in the office of the county recorder within 10 days from the sale. Within 12 months from the sale, the defendant, his heirs, executors, administrators, or grantees may redeem by paying the purchaser, or the officer for his benefit, the sum bid by the former, with interest thereon at the rate of ten per cent. per annum from date of sale. Whereupon the sale and certificate becomes null and void. After the expiration of 12, and at any time before the expiration of 15, months from the sale, a judgment creditor (even one who became such after the expiration of 12 months from the sale, Phillips v. Demoss, 14 Ill. 413) may redeem by suing out execution, placing the same in the hands of the proper officer, (whose duty is to indorse thereon a levy upon the property to be redeemed,) and by paying to such officer, for the use of the purchaser, his executors, administrators, or assigns, the amount for which the premises were sold, with interest at the rate of ten per cent. per annum from the date of sale. The officer, having filed in the county recorder's office a certificate of the redemption by such judgment creditor, is required to advertise and offer the property for sale under the execution. The judgment creditor, thus redeeming the property, is considered as having bid at the execution sale the amount of the redemption money paid by him, with interest from the date of redemption to the day of sale. If no larger bid is offered, the property is struck off and sold to such judgment creditor, who becomes entitled to a deed. The statute provides that the whole or part of any lands sold under execution may be redeemed by a judgment creditor in the like distinct quantities or parcels in which the same are sold; also, if there be no redemption within the time prescribed, that the purchaser is entitled to a deed, further, that 'lands sold under and by virtue of any decree of a court of equity for the sale of mortgaged lands' may be redeemed by the mortgagor, his heirs, executors, administrators, or grantees, and by judgment creditors, in the same manner as is prescribed for the redemption by such parties, respectively, of lands sold under executions at law. By a subsequent act, in force July 1, 1879, the foregoing statutes were amended so as to require the party redeeming to pay the amount going to the purchaser, with interest at the rate of only eight per cent. per annum. This act continued in force till after July 1st, 1879. [Statement of Case from pages 54-56 intentionally omitted] On the twelfth day of December, 1877, the insurance company instituted a suit for foreclosure, in which a final decree of sale was passed on the fourteenth day of July, 1879. The sale occurred on the fifteenth day of August, 1879, when the insurance company became the purchaser of various lots, into which the mortgaged premises had been subdivided, at prices aggregating in amount the principal and interest of its debt–the latter being computed up to the decree at the rate stipulated in the mortgage, and thereafter at the statutory rate of 6 per cent. per annum. The sale was duly confirmed by an order entered October 10, 1879. On the third day of November, 1880,–these rules being in force and no redemption having been made by the mortgagor or by any one claiming under him,–a judgment by confession on a warrant of attorney was entered in the court below for $10,150, in favor of Henry S. Monroe against W. H. Cushman, grantee of the mortgagor. An execution on that judgment, sued out November 9, 1880, was placed in the hands of the marshal of the United States for the northern district of Illinois, who indorsed thereon a levy, as of that date, on a portion of the lots purchased by the insurance company. Monroe, on the succeeding day, deposited with the clerk of the federal court the sum of $12,741.95, which covered as well the aggregate amount of principal and interest, as the commissions and fees allowed to the clerk. Rev. St. § 828. Thereupon, on the next day, the clerk, under his hand and seal of office, issued a certificate of redemption for the lots so levied on. On November 15, 1880,–on which day, according to the rule established by the supreme court of Illinois, the additional three months given to judgment creditors expired: Roan v. Rohrer, The opinion of the court was delivered by: Harlan, J.

Edward S. Isham and C. Beckwith, for appellant.

[Argument of Counsel on pages 58-59 intentionally omitted]

W. R. Page and Geo. F. Edmunds, for appellees.

[Argument of Counsel from pages 59-60 intentionally omitted]

In Brine v. Ins. Co. 96 U. S. 627, it is decided– reversing the practice which had obtained for many years in the circuit court of the United States sitting in equity in Illinois that the state law giving to a mortgagor of real estate the privilege, within 12 months after a decree of foreclosure, and to his judgment creditors within three months thereafter, of redeeming the premises, is a substantial right, and constitutes a rule of property, to which the circuit court must conform.

In anticipation, however, of the difficulties which might attend exact conformity, in every case, to the local statutes, the court, in the Brine Case, said:

'It is not necessary, as has been repeatedly said in this court, that the form or mode of securing a right like this should follow precisely that prescribed by the statute. It the right is substantially preserved or secured, it may be done by such suitable methods as the flexibility of chancery proceedings will enable the court to adopt, and which are most in conformity with the practice of the court.'

The decision in that case doubtless suggested to the circuit court the necessity of adopting definite rules in relation to redemptions from sales under its own decrees. Hence, the rules to which reference has already been made. They were established by an order of court entered July 11, 1878.

As the determination of the present case depends upon their construction and effect, those rules are given in full in the margin.*fn1 *

However this difference may be regarded in the courts of Illinois when administering the statutes by which they are created and their jurisdiction defined and limited, (Litter v. People, etc., 43 Ill. 188; Stone v. Gardner, 20 Ill. 309; Durley v. Davis, 69 Ill. 134,) we entertain no doubt of the power of the federal court to adopt its own modes or methods for the enforcement of the right of redemption given by the local law. The substantial right given, first, to mortgagors, their representatives, and grantees, and then to the judgment creditors of such mortgagors or their grantees, was to redeem the property sold within the time specified. Whether the redemption is by the one or the other class, the money is for the benefit of the purchaser at the decretal sale. When the amount going to him is secured by payment into the hands of some responsible officer, the obsect of the law, both as respects the purchaser at the decretal sale and the party redeeming, is fully attained. Redemption is effected when, by payment of the redemption money into proper hands, the purchase at the decretal sale is annulled, and the way opened for another sale. The federal court, as indicated by its rules, preferred that the money, if not paid directly to the purchaser, should, by payment through its clerk, come directly under its control for the benefit of the purchaser. where the sale of mortgaged premises is under a decree of the federal court, and the execution of the judgment creditor, who seeks to redeem is from a state court, there is an evident propriety in requiring the money going to the purchaser at the decretal sale to be paid through the clerk of the federal court into its registry. The necessity for such a regulation is not so urgent where the judgment creditor's execution is from the federal court; but we perceive no objection to extending the regulation to that class of cases. Under the operation of the rules in question the records of the federal court will, in all cases, show whether the right of the purchaser to a deed has been defeated by redemption. Can it be said that the mode prescribed by the federal court for securing the money going to the purchaser impairs his substantial rights? It he less secure than he would be if the money is paid to the officer having the execution? Clearly not. The substantial right given by the statute to the purchaser is that the redemption money be secured to him before the benefit of his purchase is taken away, and the substantial right given to the party redeeming is that the redemption becomes complete and effectual upon his payment of the required amount. The particular mode in which the money is paid or secured by the latter for the benefit of the former is not of the substance of the rights of either. The mode or manner of payment belongs, so far as the federal court is concerned, to the domain of practice, the power to regulate which, in harmony with the laws of the United States and the rules of this court, as might be necessary and convenient for the administration of justice, is expressly given by statute to the circuit courts. Rev. St. § 918.

In the conclusions thus indicated we are only giving effect to former decisions. In Brine v. Ins. Co., supra, it was, as we have seen, distinctly ruled, touching these local statutes, that the federal court–preserving substantially the right of redemption could pursue its own forms and modes for securing such right. The same doctrine, in effect, is announced in Allis v. Ins. Co. 97 U. S. 144. That case arose under a statute of Minnesota which allowed the defendant in a foreclosure proceeding to redeem within 12 months after the confirmation of the sale. The decree ordered the master, on making sale, to deliver to the purchaser a certificate stating that unless the property be redeemed within 12 months after the sale, he would be entitled to a deed. This departure from the letter of the statute was held not to be material, since substantial effect was given to the right to redeem within one year. The court said: 'In the state coarts, where the practice undoubtedly is to report the sale at once for confirmation, the time begins to run from that confirmation. But if, in the federal court, the practice is to make the final confirmation and deed at the same time, it is a necessity that the time allowed for redemption shall precede the deed of confirmation. There is here a substantial recognition of the right to redeem within 12 months.' It results that the objection taken to the rules established by the court below must be overruled.

The next question to be examined is whether there could be an effectual redemption except by payment of the amount bid, with interest at 10 per cent., the rate prescribed by statute at the date of the mortgage. Redemption was made upon the basis of the amendatory act of 1879 reducing the rate of interest in such cases to 8 per cent. The contention of the company's counsel is that that act cannot be applied without impairing the obligation of its contract. What was that contract? In what did its obligation consist? By the contract between the mortgagor and mortgagee, the former became bound to pay, within a certain time, the mortgage debt, with the stipulated interest of 9 per cent. up to final decree, if one was obtained, and with six per cent. thereafter, as prescribed by statute when the mortgage was given. Rev.St.Ill. 1874, p. 614. Certainly the obligation of that contract was not impaired by the act of 1879, for it did not diminish the duty of the mortgage to pay what he agreed to pay, or shorten the period of payment, or interfere with or take away any remedy which the mortgagee had, by existing law, for the enforcement of its contract.

The statute, in force when the mortgage was executed, prescribing the rate of interest which the amount paid or bid by the purchaser should bear, as between him and the party seeking to redeem, had no relation to the obligation of the contract between the mortgagor and mortgagee. The mortgagor might, perhaps, have claimed that his statutory right to redeem could not be burdened by an increased rate of interest beyond that prescribed by statute at the time he executed the mortgage. But, as to the mortgagee, the obligation of the contract was fully met when it received what the mortgage and statute, in force, when the mortgage was executed, entitled it to demand. The rights which the purchaser at the decretal sale, if one was had, was not of the essence of the mortgage contract, but depended wholly upon the law in force when the sale occurred. The company ceased to be a mortgagee when its debt was merged in the decree, or, at least, when the sale occurred. Thenceforward its interest in the property was as purchaser, not as mortgagee. And to require it, as purchaser, to conform to the terms for the redemption of the property as prescribed by statute at the time of purchase, does not, in any legal sense, impair the obligation of its contract as mortgagee. It assumed the position of a purchaser, subject, necessarily, to the law then in force defining the rights of purchasers.

But it is insisted that the value of the mortgage contract was impaired by a subsequent law reducing the interest to be paid to a purchaser at decretal sale; this, upon the assumption that the probability of the debt being satisfied by the decretal sale of the property was lessened by reducing the interest which any purchaser could realize on his bid in the event of redemption. In other words, the reduction by a subsequent statute of the interest to be paid to the purchaser would, it is argued, ...

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