109 Ill. 602 | Ill. | 1884
delivered the opinion of the Court:
On looking into this record it is seen this bill was brought by the executors of Charles Chandler, deceased, against Van H. Higgins, a former, and the present, sheriff of Cook county, J. W. Hambleton, and other persons in some way interested in the subject matter of the litigation. The relief sought is, that a redemption from sheriff’s sales made by Higgins, as the assignee of a judgment creditor of Thomas S. Dobbins, of the premises in controversy be set aside, and that a sheriff’s deed to Joseph W. Hambleton for the same property be also set aside, as having been made without authority of law, and in fraud of the rights of complainants’ testator, who in his lifetime was a judgment creditor of Dobbins, and on that being clone, that complainants be permitted to redeem the property, as a judgment creditor might do, from a previous sheriff’s sale, .which it is conceded was rightfully made. It is represented in the bill that a number of persons .obtained judgments against Thomas. S. Dobbins and others, all of which it seems became liens upon the real property of Dobbins. These several judgments are all set out in the bill in the order in which they became liens. It will not be neces'sary to an understanding of the questions discussed, to make reference to all of the judgments recited in the bill. So far as it may be thought to be necessary it will be done as the discussion goes on. On the 16th day of December, 1875, Robert B. Chisholm recovered a judgment in the Superior Court of Cook county, against Thomas S. Dobbins, George S. Brown, Walter L. Pease and John S. Wilcox, for $16,625, and costs of suit. It appears that on the same day an execution was issued on this judgment, directed to the sheriff of Kane county, where some proceedings were had on it that will be noticed hereafter. It is shown this judgment was assigned by plaintiff to Allen C. Fuller, and by him assigned to Lawrence, and by the latter it was re-assigned to Chisholm, the plaintiff, and by the plaintiff then assigned to Higgins. A copy of the assignment of the Chisholm judgment was filed in the office of the clerk of the Superior Court, where the judgment was rendered. By virtue of an alias execution issued on that judgment, Higgins redeemed the property from a previous sheriff’s sale that had been made on an execution issued on a j udgment in favor of Matthieson, against Dobbins, and at the subsequent sale Jose¡5h W. Hambleton became the purchaser of the property, and afterwards received a sheriff’s deed for the same. It appears the judgment creditor received the redemption money, and there is no complaint on that score. This is the deed complainants ask to have set aside.
It will be noted that Higgins, with the same execution, redeemed the same premises from sheriff’s sales on executions issued on judgments in favor of Burley & Gregg, and Hunger. These latter judgments were prior liens on the property to that created by the Matthieson judgment. It also appears these latter judgment creditors received the redemption money, and now make no complaint. This is the redemption that complainants ask to have set aside, and the sheriff enjoined from selling the property under the execution on which it was redeemed from the previous sales.
On the 6th day of April, 1876, Charles Chandler, since deceased, recovered a judgment in the Superior Court against Thomas S. Dobbins and others, for $10,961.10, and costs of suit. An execution issued on that judgment on the 2d day of May, 1876, was returned by the proper officer unsatisfied. After the death of the plaintiff, complainants filed a copy of their letters in the office of the clerk of the Superior Court, and caused an alias execution to be issued and placed in the hands of the proper officer. Complainants tendered to the sheriff having the execution, a sum of money sufficient to redeem all the lots in block three (3) from the previous sales on the executions issued on the Burley & Gregg and Hunger judgments, and requested him to levy the execution on the lots mentioned. The tender was made in apt time if a redemption was allowable, but the sheriff refused to take the money and permit a redemption, for the reason the property had previously been redeemed by Higgins, and had not been sold a second time. This bill was then filed to set aside that redemption by Higgins and the deed to Hambleton, as hindrances in the way of the redemption complainants desired to make: The principal reason assigned why the redemptions made by Higgins should be set aside is, that the Chisholm judgment under which the redemptions were made had been satisfied and fully paid before it was assigned to Higgins, and hence no valid redemption could be made under it. "Whether the Chisholm judgment against Dobbins and others had in fact been satisfied before it was assigned to Higgins, is the controlling question in the case, and the only one that need be considered. It is obvious if it were a subsisting judgment, and unsatisfied in the hands of Higgins, the redemptions made by him under the execution issued on it were valid, and the bill should have been dismissed, as was done.
Three objections are taken to the Chisholm judgment in the hands of Higgins, and to the use made of it by him: First, that the judgment was satisfied by payment of the same to Chisholm by Pease, one of the judgment debtors ,* second, it was satisfied by a levy of the execution issued on it upon personal property of the judgment debtors, greater in value than the sum due on the judgment; and third, if Pease had any interest in-the judgment, as equitable owner, or otherwise, it passed by his bankruptcy to his assignee. Considering these objections in the inverse order stated, it would seem to be a sufficient answer to the latter objection that. Lewis, the assignee of Pease in bankruptcy, assigned and transferred whatever title or interest he may have had in the judgment, if any, to Higgins, and whether that assignment was regularly made or not, since then the bar of the Statute of Limitations has run against any recovery by the assignee of the bankrupt. Unless challenged in some way the assignment would be valid, and that can not now be done.
There is no pretense the Chisholm judgment was satisfied before it came to the hands of Higgins, by any levy upon, and sale of, real estate. Something"was made on it in that way, but not enough to discharge it. If it was satisfied at all, it must have been by a levy upon bank stock owned by Wilcox, one of the execution debtors, and by a further levy on bank and other stock belonging to Pease, another one of the execution debtors. The law is, the levy of an execution upon personal property sufficient to satisfy it, operates as a satisfaction for the time being, but it is not an absolute satisfaction. It may be if the property was sold, for some reason the sum realized might not be sufficient to discharge the execution indebtedness, or it might be shown it was returned to the execution debtor and the levy released by his consent, or it might be shown that by some act of the execution debtor the fruits of the levy were lost to the creditor. (Montgomery v. Wayne, 14 Ill. 373.) Applying these general principles to the ease in hand, it is seen the levy on the bank and other stock of Pease was subsequently released by his consent, and from it nothing was realized. It does not appear that Wilcox ever consented to releasing the levy upon his bank stock. But crediting the execution with the sum made by the sale of real estate, and also the full value of the Wilcox bank stock levied upon, there still remained, as this evidence is understood, quite a considerable sum unpaid on the execution at the time the judgment was assigned to Higgins.
Nor is the other objection taken, tenable. It may be true that Pease furnished the money to pay Chisholm, and caused the judgment to be assigned to Fuller. It was done for the purpose of keeping the judgment alive for the security of Pease, and that, under the facts, as shown by the record, it is thought he might lawfully do. The judgment in favor of Chisholm was rendered on a promissory note given by the firm of T. S. Dobbins & Co., of which firm Pease was a member. The firm expired by limitation, and by an agreement subsequently made, the firm sold to Thomas S. Dobbins all its assets, and he agreed, among other things, to assume all the liabilities of the firm, and save the individual members from all trouble, loss or litigation growing out of the affairs of the firm. All the members of the firm (unless it was B. M. Hough) signed the agreement, and Dobbins took possession of the assets of the firm, and undertook to pay its debts. On this subject the law- is, where one partner, on the dissolution of the firm, assumes, for a consideration, to pay the firm debts, as between themselves the other partners are sureties for him. As respects third parties, of course their relations are not at all changed. (Conwell v. McCoiuan, 81 Ill. 285.) The law is well settled that a surety against whom judgment is rendered, with his principal, may advance the money to the creditor, and have the judgment assigned to a third party, and kept alive for' his security. That is what was done in this case, and it seems clear the Chisholm judgment was kept alive for the security of Pease, that it might eventually be made out of the property of Dobbins, who was obligated to pay it.
The first and second redemptions made by Higgins, seem to have been made under the same judgment and under the same execution. The last redemption was from a sale or sales under senior judgments. No reason is perceived why this may not be done under the statute. The policy of the law favors redemptions, and to that end the statute allowing redemptions from judicial sales has uniformly been construed liberally, so as to make the execution debtor’s property pay as much of his indebtedness as possible. A case somewhat analogous in principle is Ex parte Peru Iron Co. 7 Cow. 540.
The judgment will be affirmed.
Judgment affirmed.
Mr. Justice Mulkey took no part in the consideration of this case.
Mr. Justice Walker : I concur in the conclusion reached in this case, but am not prepared to adopt all that is said in the opinion.
: I am not satisfied that the Chisholm judgment was still in force, and such as gave Higgins a lawful right, as against Dobbins, to collect the same. But Hambleton is a bona fide purchaser at a sale on proceedings good upon their face, and should be protected. As to the right of complainant to redeem from the sales made on the judgments in favor of Burley & Gregg, and Hunger, I think he has no such right. Whether the Chisholm judgment was valid or invalid, still the redemption was in fact made, and the redemption money was accepted by the purchaser. This extinguished this sale, and hence there is no sale from which complainant can now redeem. If the Chisholm judgment was valid, Higgins got a good title by his redemption and subsequent sale under that judgment. If it was not valid, the redemption simply extinguished the sale, and left the land liable to levy under any other judgment. I therefore think the judgment of the Appellate Court ought to be affirmed.