| Ill. | May 14, 1890
delivered the opinion of the Court:
The contention in the Appellate Court, that the foreclosure proceeding by Henry Smith should be held a bar to complainants’ right to recover on the second note, or the judgment recovered thereon, does not seem to be insisted upon here, and if it was, we should not hesitate to affirm the judgment of the Appellate Court on that point. The modification of the decree by that court removes all other objections which could be justly urged against it, so far as it affects the rights of parties under the original bill.
It is urged, with much earnestness, that the decree of the circuit court granting relief to appellee Martin, on his cross-bill, is erroneous. This question affects only the rights of Peter Bressler, Frank S. Bressler and John Martin. It may properly be considered first, as a question between appellant Peter Bressler and appellee Martin.
Assuming, for the present, that Martin is in no way barred or estopped from asserting his right to this proceeding against Peter Bressler, it becomes important, first, to consider what effect the levy upon and sale of the 220 acres, and the subsequent decree on the Dinsmoor cross-bill, had upon Martin’s judgment of March 15, 1883. The theory of appellants’ answer, that that levy was only upon an equity of redemption in said lands, is not supported by the facts. His levy was upon the whole premises, and he sought, by reason of the release of the . mortgage of the insurance company, to subject the land to the payment of the judgment, free from that mortgage lien. Had his levy and sale been treated by the various courts through which the litigation-on the Dinsmoor cross-bill passed, as counsel for appellants now insist it should be treated, there would have been no occasion for setting aside his sale. It was because he was claiming, and was in a position to assert, under» the rules of law, title to the land purchased, free from all incumbrance, by reason of the insurance company mortgage, that Dinsmoor had a standing in equity.
It was decided in Young v. Morgan, that, in equity, a vendee in the position of Dinsmoor, who discharged a debt of his grantor, secured by mortgage upon the purchased premises, by applying the purchase money thereto, was .entitled to be subrogated to the rights of the insurance company as mortgagee, although its mortgage was formally released, and thus defeat Martin’s intervening judgment lien against Peter Bressler. The lien defeated was not a lien upon a mere equity of redemption, but a lien which, but for the application of the equitable doctrine announced in that case, would have taken the land. Young v. Morgan, 89 Ill. 202; Smith v. Dinsmoor, 119 id. 656.
The case is wholly unlike Finley v. Thayer et al. 42 Ill. 350" date_filed="1866-11-15" court="Ill." case_name="Finley v. Thayer">42 Ill. 350, Vanscoyoc et al. v. Kimler, 77 id. 151, and Roberts v. Hughes et al. 81 id. 130. These cases simply hold, that where mortgaged premises are levied upon by a judgment creditor of the mortgagor, and purchased in satisfaction of his judgment, the mortgage being of record, and there being no fraud on the part of the defendant in execution, the purchaser takes the property subject to the mortgage, and can not afterward have the satisfaction of his judgment set aside, and new execution,—in other words, that he can not have his sale set aside. Here, the sale was set aside, against Martin’s protest, and the question now is, shall it be said his judgment is satisfied, notwithstand■ing he has been deprived of all he purchased ? It can not be ¡denied but that by the final decree on the Dinsmoor cross-bill ’the property sold by Martin in satisfaction of his judgment was recovered back from him, and by the subsequent sale in •pursuance of that decree the entire value thereof exhausted. .Martin was left nothing.
Although there is a conflict in the authorities as to whether . "the rule of caveat emptor, as applied to execution sales, will, in ■equity, defeat a claim of a purchaser for relief when the title fails, there being no misconduct or fraudulent concealment on the part of the officer or parties, and no irregularity in the proceeding, this court, as early as 1844, held, in Warner et al. v. Helm et al. 1 Gilm. 234, that “where the title of property purchased by the plaintiff under execution fails, and the property is recovered back from the creditor, he is entitled to a ■decree, in equity, to recover his debt from the judgment debtor. So where land is sold on execution to which the defendant in ' execution has no title, and by reason of such sale the execution is returned satisfied, the purchaser is entitled to have a decree, in equity, against the judgment debtor for. the purchase money.” In Borer on Judicial Sales, p. 303, sec. 905, it is said: “But where the execution plaintiff is himself the purchaser, and the sale passes no title, the sale being void, or the property not being subject to sale on execution for plaintiff’s ■demand, it is proper for the court to set aside the sale, vacate ■satisfaction of the judgment if satisfaction is entered, and ¡allow execution anew on the judgment. So, also, where the property, though belonging to the defendant at one time, had ■ceased to be his by reason of a previous sale under a mortgage which had priority over the plaintiff’s judgment.” See, also, Freeman on Judgments, sec. 478, 478 a; Muir v. Craig, 3 Blackf. 293" date_filed="1833-11-27" court="Ind." case_name="Muir v. Craig">3 Blackf. 293; 25 Am. Dec. 111.
We think it clear, under the facts proved in this case, on the authority of Warner et al. v. Helm et al. supra, that Martin was entitled, as against Peter Bressler, to have the satisfaction •of his judgment, caused by the sale of the Dinsmoor land, set aside and his lien revived.
But it is said that the prior proceedings, on Dinsmoor’smotion, to vacate Martin’s sale, and especially on his cross- ' bill, should be held to bar the relief prayed in this cross-bill. If there is force in this position we are unable to perceive it. ' The controversy there was between Dinsmoor and Martin. Martin sought no relief in either of these proceedings. He-there acted purely on the defensive, resisting Dinsmoor’s efforts -. to take from him the fruits of his purchase. Having failed, in that defense, he now asks relief against Peter Bressler, his. debtor, to have the satisfaction of his judgment, as it appears-by the return of the execution issued thereon, set aside, and. he restored to his former rights as a judgment creditor. This-prayer would have been wholly inconsistent with the defense-set up against Dinsmoor. He could only have insisted, then,, upon having the relief which he now asks against Peter Bressler, by confessing the claim of Dinsmoor.
. The evidence offered by the parties on the issue as to-whether or not the conveyance from Peter to Frank S. Bressler was made to hinder and delay creditors of Peter, is very voluminous. We have considered it with care, and are satisfied with-the conclusion reached by the Appellate Court. It is impossible to read all the evidence in this record, and believe that Frank S. occupies the position of an innocent purchaser, without notice of the rights of Martin. He purchased pending the litigation between Dinsmoor and Martin, and is chargeable with notice that if Dinsmoor prevailed therein,. Martin would be entitled to have his judgment lien revived: He occupies no better position in this controversy than does, his father, Peter Bressler.
The judgment will be affirmed.
Judgment affirmed.