36 Ill. 321 | Ill. | 1865
delivered the opinion of the Court:
It is insisted that extending the time for the payment, and the stay of execution, rendered the judgment in favor of the Johnsons dormant, and that it was postponed to other and junior judgments. In support of this position, the case of Ross v. Webber, 26 Ill. 221, is cited by defendant in error. That case related to personal property under execution, in the hands of the sheriff, and whilst it was so in his hands, the creditor agreed to stay the execution for the period of six months, without a sale. Afterwards, and whilst the execution was in the sheriff’s hands, he received another, in favor of a different plaintiff, and against the same defendant, which continued in his hands after the prior execution had expired. It was held in that case, that by the stay of the former execution it became dormant, and lost its priority of lien, and the property became liable to sale for the satisfaction of the junior execution.
The question is then presented, whether the same rule applies to the lien of a judgment on real estate. We think it does not apply. As to the lien on personal property it is created alone by the execution, whilst the lien on real estate is created by the recovery of the judgment, and the adjournment of the court. With real estate, a junior judgment creditor may sell, subject to the lien of an older j udgraent. But such is not the case with personal property, as the levy is prima facie a satisfaction of the execution, and there can be no levy unless the property passes under the control of the officer. When he has seized it under execution, it cannot be taken from his hands and sold under a different execution, junior in date. Nor can an officer sell such property unless it is present, under his control, when the sale is made, that it may be seen by purchasers, and a delivery made after the sale. Hence an execution coming to the hands of an officer, cannot be levied on property seized and in the hands of a different officer. An officer may, however, sell under the first execution, and apply any surplus to the satisfac ■ tion of the junior execution in his hands. Not so with real estate, as it may be sold on a junior judgment, subject to prior liens. If, therefore, a stay of the sale of personal property could be made beyond the lifetime of the execution, it might be used as the most effectual means of hindering and delaying creditors in the collection of their debts. It could be used as a most potent means of holding creditors at arm’s length, and thus perpetrating great fraud. Any extension of time or stay of execution on real estate, to a time short of the statutory period of limitation of a judgment lien, may be made without prejudice to the creditor.
It is again contended that the payment of the amount of the judgment, by Marshall, to the plaintiff’s attorney, operated as a satisfaction, notwithstanding the assignment of the judgment. When it was agreed by the parties that Marshall should retain, of the sum he owed Linder, a sufficient amount to pay the judgment, and that the sale should be stayed fora year, none of the parties supposed that they thereby satisfied the judgment, nor did the agreement have that effect. Nor did the withdrawal of the money by Linder from the hands of Marshall, in violation of the agreement, in anywise affect the judgment or the rights of plaintiffs in execution. They might then have sued out a venditioni exponas, and have sold the property, and if insufficient to satisfy the judgment, proceeded against other property subject to the judgment lien to obtain satisfaction.
It may be said, that Marshall, by his agreement to retain a sufficient sum of what he owed Linder, and to pay the debt, became liable to pay the judgment. It cannot be said that he agreed to do so gratuitously. It appears that the agreement was, that the execution was to be stayed for one year. There was only an agreement for a stay of proceedings, and not for *a satisfaction, but the right was implied that a sale might be made at the expiration of the time, if the money was not paid. Otherwise, the execution would have been returned satisfied, and Marshall looked to for payment.
The agreement not to sell was made, and the execution returned, on the 24th day of March, 1859. And it will be observed, that the judgments, under which defendant in error claims, were not recovered until the April term, 1860, and after-wards, more than one year after the agreement was made to stay the execution. Had the parties come together at any time before these judgments were obtained, and rescinded the contract, could it be contended that any injury had been done to any of Linder’s creditors? If so, how, and upon what principle ? And it may be asked, in what do the cases differ ? The money designed for the payment of the judgment had been withdrawn by Linder from Marshall’s hands,.without any objection by him, and it was afterwards virtually assented to by the attorney of the plaintiffs. Had the money been paid under the same circumstances by Marshall, and the assignment made to him before the April term, 1860, it would hardly be insisted that Marshall had not acquired the benefit of the judgment and its lien. And when the agreement had failed, previous to that time, and the money was paid, and the assignment made afterwards, we do not perceive that Marshall acquired any less rights. He had the right, after Linder withdrew his money, to purchase the judgment and take an assignment.
It is also insisted that the attorney was unauthorized to assign the judgment, unless he had a special authority. Whether he had authority or not, can, we think, make no difference, as it may be safely inferred that plaintiffs in execution, by receiving the money, ratified his act. They seem to have obtained their money, and are making no complaint or objection to Marshall using the execution to collect the judgment. We are, therefore, of the opinion that Marshall, by the assignment, acquired an equitable title to the judgment, and has the right to control the process of the court for its collection.
It is, however, true that it was irregular to sue out execution and levy on property until the former levy had been disposed of, by sale or otherwise. The regular course would have been to have sued out a venditioni exponas, and sold the property; or have the levy set aside, if any reason for doing so existed, before he could make a new levy. To proceed otherwise is irregular, and entitles defendant in error to have the last levy set aside, and to have the former levies disposed of before his property can be taken in execution.
Again, the bill alleges there was other property subject to levy and sale, not incumbered, out of which Marshall could have satisfied this judgment. If there is any property belonging to Linder, subject to execution and unincumbered, Marshall is bound, in equity, to exhaust it before he resorts to the property purchased by defendant in error. Wise v. Shepherd, 13 Ill. 41; Hurd v. Eaton, 28 Ill. 122. The decree of the court below is, therefore, reversed, and the cause remanded, with instructions to require Marshall to exhaust the levy already made, on the former execution, and to resort to any other property of Linder, subject to execution, free from incumbrance, before he can levy and sell the property purchased by defendant in error, under an execution against Linder, for the satisfaction of the judgment.
Decree reversed.
