| Ill. | Apr 17, 1899
delivered the opinion of the court:
The present appellee, Robert H. Craig, was a minor, when the life estate of his father in the eighty acres was sold, on January 21, 1893, and did not reach the age of majority until December 7, 1895. He is the owner in fee of one undivided half of the remainder in the eig’hty acres, and his sister, Mrs. Kibbie, of the other undivided half thereof, subject to the life estate so sold, and purchased by the appellant. He files the present bill for the purpose of redeeming such life estate from the sale made of it by the master. After a careful examination of the record and of the briefs of counsel, we are unable to see upon what ground he is entitled to the redemption asked for. Counsel for appellee say, that the appellee was a defendant in the chancery proceeding, in which the decree of sale was entered, and that, under the statute, any defendant may, within twelve months from the sale, redeem the land sold. Counsel also say, that the appellee, as the owner of the undivided one-half of the remainder, was entitled to redeem from the sale of the life estate. We do not deem it necessary to discuss the question, whether or not he would have been entitled to redeem, as defendant, or as remainder-man, if he had taken steps to redeem within the time allowed by the statute. He was a defendant in the chancery suit; he appeared by guardian ad litem, and filed an answer, and also filed a cross-bill in the-case. He did not redeem within twelve months after the sale. We know of no provision in any statute in relation to redemptions, which gives a minor the right to file a bill to redeem under the circumstances disclosed by this record.
The statute in regard to redemptions does not give minors a certain time, after their disabilities have ceased, to redeem from judicial sales. To hold that they have such time for redemption after disability has ceased, would, in the absence of statutory permission to that effect, shake the validity of judicial sales and deter bidding thereat. It is common practice in this State to file bills -to foreclose mortgages against the minor heirs of deceased mortgagors, who appear in such proceedings by guardians ad litem. But it has never been supposed, that the purchaser at such a foreclosure sale would hold his title subject to the right of the minor defendant to redeem from the sale, as soon as he should become of age, even though the statutory time for redemption had then long since passed, and a deed had been issued to such purchaser by the master. Section 85 of the Practice act provides, that a writ of error shall not be brought after the expiration of five years from the rendition of the decree or judgment complained of; but when the person complaining is an infant when the same is entered, the time of such disability shall be excluded from the computation of the five years.
After appellee became of age, he had the right to review the decree, under which his father’s life estate was sold, by writ of error, and to have the same reversed if it was erroneous in any respect. He has not seen fit to take this course, but has filed an original bill to redeem from the sale long after the statutory period for redemption has expired, and after the purchaser has received his master’s deed. A decree against an infant, which is absolute in the' first instance, may be attacked and impeached by an original bill for fraud, or for error in law apparent upon the face of the record, at any time before the infant attains majority, or within the period after majority allowed by law for the prosecution of a writ of error for the reversal of a decree. (Haines v. Hewitt, 129 Ill. 347" date_filed="1889-06-15" court="Ill." case_name="Haines v. Hewitt">129 Ill. 347). But, in the case at bar, appellee does not charge in his bill, that there was any fraud in obtaining the decree, under which the life estate of his father was sold, nor has he pointed out to us any error of law apparent upon the face of the record.
Three grounds only are stated in the bill as reasons why the relief therein prayed should be granted; and these grounds are, first, that he was a minor, when the decree was entered and up to a period subsequent to the expiration of the time allowed by the statute for redemption; second, that he is a remainder-man; and third, that the suit, involving the question of alimony between his mother and father, was pending by appeal in this court until November 10, 1896, and that he could not determine the amount due under the decree, until the suit pending in this court was decided. It sufficiently appears from what has already been said, that the first two grounds are insufficient. The third ground is also insufficient for the reason, that the sale of the life estate was made for a fixed and specified amount, to-wit, §687.63; and the amount, for which the sale was made, together with interest thereon, was the amount necessary to be paid to redeem. The decision of the case referred to as pending in this court was not necessary to determine the amount, which should be paid to redeem. Said case, which is that of Craig v. Craig, 163 Ill. 176" date_filed="1896-11-10" court="Ill." case_name="Craig v. Craig">163 Ill. 176, shows that the question there pending arose upon a subsequent proceeding, instituted by Frances A. Craig on September 10, 1894, in which she prayed for a sale of the fee of the land for the purpose of raising an amount sufficient to pay her alimony. In this last proceeding a decree was rendered on December 11, 1894, modifying and changing the decree for alimony that had been previously rendered; and the writ of error in Craig v. Craig, supra, merely brought before this court for review the decree of December 11, 1894. In that case it was expressly stated, that the decree for the sale of the life estate of James R. Craig was not involved.
Appellee, however, invokes section 20 of the Divorce act which provides as follows: “Whenever, in any case of divorce, a decree for alimony or maintenance is made a lien on any real estate to secure the payment of any money to become due by installments, and a sale of such real estate shall become necessary to satisfy any of such installments, the property shall, be sold subject to the lien of the installments not then due, unless the court shall at the time direct otherwise, and subsequent sales may, from time to time, be made to enforce such lien as the installments may become due, until all installments are paid.” (2 Starr & Curt. Ann. Stat.—2d ed.—p. 1454).
In construing this statute in the case of Campbell v. Leonard, 132 Ill. 232" date_filed="1890-03-31" court="Ill." case_name="Campbell v. Leonard">132 Ill. 232, we said (p. 236):. “It was competent for the court, in rendering such decree, to have directed the manner of the sale to be made to satisfy the several installments of alimony as they severally fell due, but not having done so, it would seem clear that the statute quoted must control, and if it became necessary to make sales of the land, upon which the lien was declared, or any portion of it, to satisfy any installment of the alimony, such sale must be made subject to the lien of the installments not due. "* * * If the sale be made as provided by the statute, the purchaser would acquire ail the title of the defendant in the divorce proceeding, but he would take it cum onere the lien for the maturing installments of alimony. Any sale of the land, not subject to the lien preserved by the statute, would necessarily be voidable at the instance of either the husband or wife, and, being voidable, may be questioned by any person interested in the land, or in enforcing the lien of the decree thereon.”
In view of the doctrine laid down in Campbell v. Leonard, supra, counsel for appellee say, that the life estate should have been sold subject to the lien of the future installment of alimony thereafter to become due; and that, inasmuch as it was not sold subject to such lien, the sale may be set aside on equitable terms even after the time of redemption has expired. Undoubtedly, it was held in Campbell v. Leonard, supra, that said section 20 so far modifies and controls the general statute, relating to sales of real estate on execution, as to render an absolute sale and deed voidable. But section 20 provides, that the property shall be sold subject to the lien of the installments not due, “unless the court shall at the time direct otherwise.” The statute thus confers upon the court, making the decree, the rig'ht to direct that a sale may be made without making the property subject to the lien of the installments not due. The reasoning in the Campbell case only applies to a case, where the court fails to “direct otherwise” within the meaning of the statute. Here, the decree of sale expressly orders, that the master shall first sell the life estate of James R. Craig in said premises before selling any of the remainder of the premises; and that, after the life estate has been once all sold, it shall not be further subject to sale under the decree. As we understand this part of the decree, it directs that the life estate shall not be sold subject to the lien of the subsequently accruing" installments of alimony, but shall be sold without being subject thereto. There can be no other construction of the following language of the decree: “Provided further, that, after said life estate of said James R. Craig" has been by virtue of this decree once all sold, it shall not be further subject to sale under this decree.” The decree, in thus providing that it shall not be further subject to sale, necessarily directed that it shall not be sold subject to the lien of the future installments, because, if it had been sold subject to the lien of the future installments, a future sale might have been necessary to enforce such lien; and yet such future sale after the life estate has been once all sold, as it was in this case on January 21, 1893, is expressly forbidden.
In view of the considerations thus presented we have reached the conclusion, that the decree of the circuit court allowing redemption was erroneous. Accordingly, the decree of the circuit court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.