18 Ill. 23 | Ill. | 1856
This was a bill in equity to set aside a sale on execution of real estate.
Burk, McKee & Co., at the April term, 1842, of the Jefferson Circuit Court, recovered a judgment against Eidgway and Anderson. Eiggs & Co., whose interest the complainant, James P. Erskine, represents, at the following September term of said court, recovered a judgment against the same parties. Executions were issued upon both judgments, within a year of the respective recoveries. On the 8th day of May, 1845, execution issued upon the judgment of Eiggs & Co., under which lot 59, in block 10, in the town of Mount Vernon, was sold to the plaintiffs in execution, for $150. On the 11th day of February, 1846, execution issued upon the same judgment, and by arrangement between the parties, the execution creditors increased their bid for lot 59 to $250, and the execution creditors took lot 61, in said block 10, at $227.36, the amount of the balance due on the judgment and execution. This arrangement was made on the 21st day of March, 1846, the judgment debtors expressly authorizing the sheriff to sell the property under the execution forthwith, and without giving jrablic notice thereof, reserving their right of redemption for fifteen months, and the execution creditors bidding at such sale the balance due on the judgment and execution, which was about the real value of the property.
On the 17th day of April, 1846, an execution issued upon the judgment of Burk, McKee & Co., and the same lots were sold under it to the plaintiffs in execution, by a like arrangement between them and the defendants in execution, and without public notice, who finally obtained a sheriff’s deed therefor, and hold the property under the title thus acquired.
Eidgway was clerk of the said circuit court when the several judgments were rendered, and when the sales were made, and Eiggs & Go. were non-residents, and their attorney, who lived at a considerable distance from Jefferson county, nor themselves had actual knowledge of the existence of the judgment of Burk, McKee & Co. It is evident the sale to Eiggs & Co. was made by mutual arrangement between the parties, at the supposed or agreed value of the property, and that the sheriff did not make the sale under the provisions of the law, but, in a manner, as the agent of the defendants in execution. It was by their authority, and. not that of the law, that the sale was made without public notice.
The defendants in execution must have known of the prior judgment of Burk, McKee & Co.; and Eidgway, as clerk, and who as such issued the executions, cannot be supposed to have been in fact ignorant of the prior lien of that judgment, and that the same, if enforced against this property, would render the title acquired under Eiggs & Co.’s judgment worthless. "When,, therefore, they obtained by arrangement with Eiggs & Co., $100 more than they were obliged by their bid and previous purchase to pay for lot 59, and Ml satisfaction of the judgment by the sale to them of lot 61, made by the sheriff without complying with the requirements of the law, they were bound by good faith, and the plainest rules of fair dealing, to have informed Eiggs & Co. of the prior judgment against them; but instead of so doing, they induced them to buy, supposing they were getting the title to the lots, and in ignorance of a material fact within their knowledge, affecting the property, and afterward obtained the application of the same property to the satisfaction of the prior judgment, by a similar sale under that judgment, made without public notice.
So far then, as these complaints are concerned, the sale must be treated as made by Eidgway and Anderson, and not as a judicial sale, for such it was in effect, reserving the right of redemption.
The suppression of fact in a matter material to be known in a transaction pending, is, both at law and in equity, equivalent to the assertion of falsehood. Lockridge v. Foster, 4 Scam. R. 389.
The complainants have taken nothing by the purchase, and are entitled to the money bid, with interest.
Anderson having died since this transaction, his administrator is made a party defendant with Eidgway, and a decree will be entered in this court in favor of complainant, James P. Erskine, the assignee of Eiggs & Co., and against Eidgway for the amount of the sales of lots 59 and 61, with interest, and for costs in' this court and the court below, with an award of execution therefor against Eidgway, and in case of non-payment by Eidgway, that the same be paid by the administrator of Anderson, in the due course of administration.
Decree reversed, and decree in .this court.
Decree reversed.