43 Ill. 504 | Ill. | 1867
delivered the opinion of the Court:
On the 7th of August, 1843, Lewis W. Clark, holding lots 14, 15 and 16, in block 22 in Wolcott’s addition to Chicago, by a contract of purchase from Ogden, conveyed the same to his sister, Letty M. Clark. On the 27th of July, 1848, Clark, being indebted to Erastus Corning & Co., caused Ogden to convey the legal title to Burch, as trustee, to secure the payment of said debt. Clark himself united in this deed, and it was executed and recorded before the record of the above named deed to Letty M. Clark. Default having been made in the payment to Corning & Co., Burch sold, under the deed of trust, on the 9th of October, 1851, and Buckner S. Morris became the purchaser, to whom Burch did not then make a deed, but gave a memorandum of the sale. Morris was surety for Clark, on the debt due Corning & Co. On the 22d of November, 1854, Lewis W. Clark conveyed the premises to Henry H. Honoré.
While the title stood in this condition, and on the 2d of May, 1855 (Burch not having yet conveyed to Morris), Letty M. Clark filed her bill in the Common Pleas Court of Cook county, making parties, Burch, Morris, Ogden, Corning & Co. and the widow and heirs of Lewis W. Clark, who had, in the meantime, departed this life, and claimed title in her bill to these lots, under her deed from Clark, on the ground, that, although the deed of trust to Burch was first recorded, the parties thereto, and all persons claiming under it, were chargeable with actual notice through her alleged possession of the property. The bill further charged, that the purchase by Morris, at the sale under the deed of trust, was for the benefit of Clark, and in secret trust for him, and to enable him to hold the property discharged of the rights of the complainant, under her deed of August 7th, 1843. The bill prayed that an account be taken of the debt due Corning & Co., and secured by the deed of trust, and that the complainant be permitted to redeem the property by paying the amount found due. The defendants answered, and the case having been heard on the pleadings and proofs, the bill was dismissed. The complainant brought the record to this court, and the decree of the Common Pleas was affirmed. The case is reported in 22 Ill. 434.
While the foregoing suit was pending, one Benedict recovered a judgment against Betty M. Clark, upon which execution issued, aud the sheriff sold her interest in the lots in controversy to one Hall. The title thus acquired passed by means of a redemption by another judgment creditor, and a transfer of the sheriff’s certificate, to Dickson, the present appellant, and on the 12th of July, 1858, the sheriff made him a deed. All this occurred pending the above mentioned suit.
After that suit was finally disposed of in this comi, Burch, still holding the legal title, conveyed it to Morris, who, as already stated, had become the purchaser at the sale under the deed of trust, before that suit had commenced, and Morris, on the 30th of January, 1860, conveyed to Honoré, who, on the 6th of April, 1860, conveyed, for a valuable consideration, to Todd. The bill in this case was filed by Todd against Dickson, to remove the cloud upon the title created by Dickson’s claim to the premises, under his sheriff’s deed, above mentioned. Dickson answered, and filed a cross-bill claiming the right to redeem from the sale under the Burch deed of trust, and by redeeming, acquire title to the premises. The Circuit Court decreed in favor of Todd, and dismissed the cross-bill. Dickson brings the record here by appeal.
The statement of the foregoing facts is nearly all that is necessary to be said to dispose of this case. A plainer instance of res acljudieata, does not often arise. If tlie rights of the parties to this record are not concluded by the former litigation and decree in the case of Letty M. Clark against Morris and others, we shall almost despair of definitely settling the rights of parties in any suit. It is not denied by counsel for appellant that Dickson, who acquired the title of Letty M. Clark pending the former suit, took it subject to whatever decree in that suit the court might make. This is familiar law. If such were not the rule, parties, by transferring their rights pendente lite, might keep the door of litigation perpetually open over the same subject matter. Judgments and decrees bind equally parties and privies, and a purchaser pendente lite stands in the latter category.
In this suit, then, Dickson stands in the shoes of Letty M. Clark, and is bound by the former decree against her,' in favor of the parties under whom Todd claims, if the subject matter of the two suits was the same. The only difference which the counsel for the appellant attempts to point out is this: He insists, that the title to the premises, as a question of paramount title, was only in controversy in the first suit, while the present cross-bill is a bill to redeem. But this is an error. The bill in the former case did not proceed on the ground of paramount title alone; on the contrary, it distinctly put in issue the right to redeem from the sale under the trust deed. As we have already shown, in speaking of that bill, it avers, that the purchase by Morris, under the trust deed, was made for the benefit of Lewis W. Clark, and in trust for him, and to enable him to hold the premises discharged of the claim of Letty M. Clark, under her deed of August 7, 1843, and asks an account to be stated between Clark and Corning & Co., and to be permitted to redeem. It is, therefore, perfectly clear, that the right to redeem was as much in issue in the former suit as in the present.
Counsel allege, that the present cross-bill avers an agreement between Morris and Clark, that Clark should be permitted to redeem, and in that respect differs from the former bill. But this is -simply averring a circumstance, which, if true, would go to show that Morris did purchase in trust for Clark, subject to the payment of his advances, and the allegation that he did so purchase ivas made in the former bill, and the right to redeem was claimed as a consequence. Proof of the agreement, alleged in the present bill to have been made, would have been admissible in evidence under the former bill. Indeed, the evidence relied upon to prove such agreement is the answer of Morris to the former bill. But it is sufficient to say, that the question, whether there was a trust for the benefit of Clark in the purchase of Morris, and whether there was a consequent right to redeem, were distinctly put in issue in the former cause, and decided against the then complainant. That decree is binding upon Dickson, and conclusive of the present case.,
Decree affirmed.
