34 Ill. App. 122 | Ill. App. Ct. | 1889
Lead Opinion
The appellee, Adam Smith, on the 30th of August, 1887, began a suit to foreclose a mortgage of May, 1881, given by Peter Bressler and wife to Adam Smith, conveying all the lands in the mortgages, which may be hereafter described, to secure $4,627.91, the balance of which, that remained unsatisfied, having been re-assigned to the said complainant, Adam Smith (it having once been assigned to Henry Smith), making, in this foreclosure suit, the appellants and others, and appellee John Martin, parties respondent. To this bill John Martin answered, and then filed his cross-bill, making the other respondents in the court below, as well as Adam Smith, parties defendant. Appellee Martin sought by this cross-bill to procure the revival of a certain judgment which he had procured in the Circuit Court of Whiteside County for $3,395 and costs, on March 15, 1883, against Peter Bressler, which had been satisfied in part by a sale by the sheriff, on execution, of 220 acres of land of the latter, to the amount of $2,035, on July 14, 1883, and the balance satisfied by the sale of other real estate not involved in this controversy. The court below decreed satisfaction to be set aside, and the judgment, so far as the amount bid on the above named land, should be revived, and execution issue thereon, and the lands of appellant Frank Bressler sold to satisfy the same. The cross-bill also seeks to set aside the deed from. Peter Bressler and wife to his son, Frank S. Bressler, for the real estate involved herein of date of July 1, 1888, and subject it to the satisfaction of the judgment thus revived. The mortgage in this case sought to be foreclosed by Adam Smith was a prior lien to the judgment of appellee Martin, but appellee Smith -was not in any way contesting the right of appellee Martin to the relief he seeks here, nor was the latter contesting the priority of Smith’s mortgage.
We will first notice the defense set up by appellants to the relief sought by appellee Martin in his cross-bill. It appears from the evidence and the pleadings in the case that prior to the Smith mortgage, and also long prior to the date of the recovery of appellee Martin’s judgment, to wit, March 1, 1881, Peter Bressler had mortgaged the land in question in this suit, as well as the 220 acres afterward deeded to Dins-moor, in all 1,040 acres, which will be mentioned hereafter, by ihree separate mortgages, to the .¿Etna Life Insurance Company, to secure a large sum of money. James Dinsmoor, on March 7,1883, had purchased the 220 acre tract of land from Peter Bressler for the sum of §7,700. The money so agreed to be paid to Bressler for the 220 acre tract of land was, by agreement between Dinsmoor and Peter Bressler, to be applied in satisfaction of the .¿Etna mortgage so far as it would go, which covered this land, with others, which was done. The money was sufficient to procure the release of the .¿Etna mortgage on the land so purchased and a considerable sum beside, but the deed from Peter Bressler to James Dins-moor was'not placed upon record till March 23, 1883, and the release of the .¿Etna Company not till March 27, 1883, leaving the appellee’s judgment a few days in priority in date to the record of the deed and the release. Thereupon appellee Martin, thinking he saw an opportunity, by reason of the priority of his judgment to the record of Dinsmoor’s deed and by reason of the release of said mortgage, to make his judgment, caused execution to issue thereon April 3, 1883, and on June 13th said execution was levied on the land purchased by Dinsmoor, and on the 14th of July of the same year the sheriff sold the land to Martin for §2,035, and issued to him a certificate of purchase and returned the execution satisfied.
At the December term, 1883, Peter Bressler moved the court to set aside the levy and sale of said Martin to the end that Peter Brcssler’s interest in the land other than that sold to Dinsmoor, being about 820 acres, might be first sold; appellee Martin resisted the motion and the court refused to grant it. On the 20th November, 1883, the day on which the second of the Smith notes became due, Henry Smith, the assignee of the notes, filed a bill to foreclose them as to the first $1,500 note falling due, making Peter Bressler and Adam Smith, John Martin (appellee) and James Dinsmoor respondents. Peter Bressler, appellee Martin arid James Dinsmoor answered, and afterward James Dinsmoor filed his cross and amended cross-bill against Henry and Adam Smith and appellee Martin, setting up the facts in reference to his purchase of the 220 acres of land from Peter Bressler and asking to be subrogated to all the rights of the JEtna Life Ins. Co. under its said mortgage to the said 220 acres; that Martin might be decreed to hold subject to the rights of Dinsmoor so subrogated as aforesaid and that his certificate of purchase might be canceled. The court upon hearing decreed the foreclosure of the Smith mortgage in that suit ($1,633.60 being due) and subrogated Dinsmoor to the full amount of $7,700 paid by him for the land, to all the rights of the JEtna mortgage as against Smith and against appellee Martin, and also vacated the sheriff’s sale and appellee Martin’s certificate of purchase. Upon appeal by Smith and Martin to the Appellate Court the decree of the Circuit Court was modified as to amount allowed to be subrogated, and upon further appeal to Supreme Court the amount was further changed and subrogation allowed to the extent of $5,658.32, and the Circuit Court directed to enter a decree in accordance with the opinion. See, 16 Ill. App. 115; Smith v. Dinsmoor, 119 Ill. 656. On the 20th day of December, 1887, in accordance with the direction of the Supreme Court, the Circuit Court rendered the decree as ordered, annulling the sale and certificate of purchase of appellee. On February 2,1883, the Dinsmoor 220 acres were sold under decree to James Dinsmoor for $7,316.78, being in full of his debt, interest and costs, and being nearly, if not quite, the full value of the land. The appellants insist that the judgment of the court on the motion by Peter Bressler to set aside the sale is a bar to the relief asked by the cross-bill herein, and besides, as the judgment was not revived by the decree of the court December 20, 1887, in case of Smith et al. v. Dinsmoor, on remanding order from the Supreme Court, the appellee Martin is now estopped to ask any further relief; that he can not now be heard to complain that his judgment is not revived. We can not agree with either of these propositions. In regard to the first point we are of opinion that it is not an estoppel for the following reasons: the causes for which the levy and sale were finally set aside were not urged in the motion of Peter Bressler to set aside the sale, and he and the appellee Martin were the only proper parties to such motion as to the record, and the equities urged by Dinsmoor in his cross-bill for setting aside the sale did not exist in favor of Peter Bressler. He was indifferent. It would be improper to admit suggestions upon the hearing of that motion in regard to the equitable rights of third parties. In order to give it—the court—jurisdiction of such matters, equity must be resorted to.
By the decree of the Circuit Court of December 20, 1887, referred to, made in the case of Smith v. Dinsmoor on the cross-bill of Dinsmoor against Martin, the sale and certificate of purchase of Martin was wholly set aside and nullified, and this in accordance with the mandate of the Supreme Court. The court says, when commenting on that subject in its opinion: “ It was not error for the Circuit Court to cancel by its decree the certificate of purchase of the 220 acres issued by the sheriff to Martin. The mortgage on the land bought by appellee had no existence in law after the release by the company, and with that certificate Martin could obtain a sheriff’s deed, and that would be a cloud upon appellee’s title. Such a cloud was removed by decree in Young v. Morgan,” 89 Ill. 199.
Is Peter Bressler estopped by this decree in equity and good conscience? We think he clearly is. In the first place, he was not a party to this cross-bill of Dinsmoor, and for that reason he can not be heard to insist that the decree, while the court had jurisdiction, should have gone further and revived the judgment; yet he was privy in such a manner by his deed to Dinsmoor as to estop him from denying the justice of Dinsmoor’s decree as to the vacation of the sale. Let us look at the equities for a moment; Bressler sold the land before the judgment was obtained and received full value for it, and authorized the purchase money to be paid out on former indebtedness which were prior liens on the same land, and gave a warranty deed to Dinsmoor, but the deed was not recorded till after the j udgment. By means of this deed and these incumbrances, in a suit that was litigated through all the courts, the appellee Martin’s certificate of purchase was set aside. By these acts of Peter Bressler, confirmed by the decree of the court, there was no equity of redemption remaining to Martin. Peter Bressler received the value of the land when he took the full purchase price and authorized, by his acts, James Dinsmoor to claim the full title to the land which he warranted. If the sale of appellee Martin had been allowed to stand, and Martin, after acquiring a deed, had redeemed from Dinsmoor’s lien, the latter would not have acquired the title that Bressler had conveyed to him and would have had a right of action over and against Peter Bressler on his covenants of warranty in his deed to Dinsmoor. The sale was set aside at Dinsmoor’s application in spite of Martin, by equities acquired through the purchase of the 220 acres of land from Peter Bressler, the defendant in the execution. It matters not, even if the setting aside the sale of the land under the Martin execution was erroneous; Martin was bound by it, and Bressler’s deed to Dinsmoor was made good. Peter Bressler must have intended by his deed to Dinsmoor to give him a complete title to the land free from any claim of Martin. It does not, therefore, lie in Bressler’s mouth to say that Martin must abide by his sale and redeem from Dins-moor’s lien. There is an entire want of equity in Peter Bressler’s claim that Martin’s judgment of over $2,000 should be held to be satisfied. Hot a dollar of his property has been applied to its satisfaction. The result has been that he sold the land Martin tried to subject to his satisfaction to Dinsmoor, and it has been freed from any claims of Martin. He seeks to accomplish his purpose of defrauding Martin out of his debt by insisting on technicalities and invoking principles of law very proper when properly applied, but which are not applicable to the facts of this case.
In regard to the claim of Frank S. Bressler that he is a bona, fide purchaser in good faith without notice of Martin’s equities and for a valuable consideration, we are constrained to say, without going into detail in respect to the evidence, that it does not support him. We think the evidence shows that his purchase was fraudulent in fact, and was made with intent of aiding his father in hindering and delaying his creditors and also with the full knowledge that the latter was making the sale for such purpose. We are also inclined to think that his purchase was made with a constructive knowl" edge of appellee Martin’s equities.
The point urged, that the decree ordering execution to issue on the Martin judgment directed to the sheriff and he to sell thereunder was error, is not well taken. Such order might have been omitted as it could have been done without it, but as the decree must be understood to mean only that the sheriff sell according to law after proper redemption where necessary, we see no harmful error in it; and besides, Smith, appellee, is not objecting here as to such decree. Neither is Dinsmoor objecting to any supposed lien claimed to be on his land, and Frank Bressler can not complain of the sale of Dins-moor’s land. The meaning of the decree is to sell only so much of the land as is necessary to satisfy the mortgage debt.
A point is made against the decree in favor of the appellee Smith, foreclosing his mortgage for the second $1,500 note. It is insisted that the foreclosure of the first note in the first foreclosure is a bar to the foreclosure of the other note. It seems that the last note was not due if three days of grace be counted, which must be done, when the first foreclosure suit was commenced; but appellants insist that because appellee Smith took issue with their plea and did not have it set down for hearing, that he admits that the second note was due, when it was not, in fact, at the time the first bill was filed; and this under a rule of pleading. We can not accede to this claim. The' plea alleged that at the time of filing the first bill both notes were due; that there was an accounting, or should have been, in the first suit; but it will be seen that when the evidence was heard it was found the notes were not both due when the first suit was commenced. This disposes of that point. Another point is that the mortgage had a clause in it providing that in case of default in the payment of any part of said notes or the interest thereon, the entire principal and interest should become due at the election of the said party of the second part, that is, the mortgagee. It will be seen, though, that the party of the second part never declared the last note to be due, so this clause can not avail appellants, as the condition was put in' for his benefit, which he was not bound to take advantage of unless he saw proper, which he did not. As no forfeiture was declared, days of grace continued to run as before, according to law, and the terms of the note.
Another point is made, that the decree ordered the sale of all the lands, those sold by Dinsmoor (the 220 acres) included, while Dinsmoor was not a party, and also orders the sale of the same land that was sold under the former foreclosure of Adam Smith under this same mortgage. This was probably error, but as to how the sale of the Dinsmoor land could injure appellants, we are unable to see, as they have no claim to those lands, and Dinsmoor is not a party. The appellee Smith, however, has made a motion in the court here to release the lien of the decree herein, on the lots complained of by appellants, to wit: Lot two, of the southwest quarter of section seven, and lot two of the northwest quarter of section eighteen, and all of lot two of the southwest quarter of section eighteen north of Elkliorn Creek, town twenty-one, of range seven, east of 4th P. M. Also east half of the southwest quarter of section seven; east half of the northwest quarter of section eighteen; that part of the east half of the southwest quarter of section eighteen lying north and west of Elkhorn Creek; the west half of the southeast quarter of section seven, except fifteen acres, and all that part of the northeast quarter of section eighteen lying north and west of Elkhorn Greek, all in township twenty-one north, of range seven, east of the 4th P. M., in Whiteside county, Ill. Upon consideration the said motion is allowed and the decree reversed as far as it applies to any and all the above described land, or any part thereof, and the declaration of lieu is annulled.
The decree of the Circuit Court in all other respects is affirmed. The costs of this court is ordered to be divided equally between Frank S. Bressler, appellant, and the appellee Adam Smith.
Affirmed in pari and reversed in part.
Dissenting Opinion
dissents. I think the decree both as to the original and cross-bill should be reversed and that the cross-bill should be dismissed. I agree with the majority of the court only so far as it holds that the second $1,500 note was not barred by the former suit. I, in all other respects, both as to the reasoning and conclusion of the court, dissent.
