40 Ill. 160 | Ill. | 1866
delivered the opinion of the Court:
At the May Term, 1861, of the Peoria Circuit Court, Till and Knevels obtained a judgment against Westcott, which was levied on a tract of land in Livingston county, on the 17th of May, 1861, and the levy was duly recorded. At that time the" title to the land stood, on the record, in Westcott. He had, however, in February, 1861, made a deed to Massey, the complainant in this suit, intending to convey these premises, but failed to do so, through an error in the description. Till and Knevels sold under their levy and became themselves the purchasers, on the 15th of June, 1861. On the 15th of June, 1862, Cooper, a judgment creditor of Westcott, redeemed from the sale to Till and Knevels, and on the 2d of August the land was again sold under Cooper’s execution and purchased by him. A deed was subsequently made to him, and now Massey files his bill against Cooper, asking that his title be set aside and that the mistake in the deed to himself be corrected. The bill charges notice to Till and Knevels, and to Cooper, before their levies were made, of the sale and intended conveyance to Massey, and this is the real question in the case.
From the foregoing statement it is apparent that unless notice cam be brought home to- Till and Knevels or to Cooper, their attorney, before their- lien attached, the case of the- complainant must fail.. Other points are made by the counsel" for appellant. If is- insisted' that Till and Knevels, even if they had no notice, are not entitled to protection as judgment creditors because they have parted with nothing and have less equity than would have a subsequent purchaser. But in this State the law is otherwise settled. Under our statutes a purchaser and a judgment creditor having a lien stand upon the same equity, and this has been so held ever since the act of 1833, and the case of Martin v. Dryden, 1 Gilm. 216. The same remark applies to another point made by appellant’s counsel, to wit: that the lien of a judgment attaches only to whatever interest in land the judgment debtor may, in fact, have, and does not take precedence of a prior purchaser claiming under an unrecorded deed. This has been so held in some of the States, but under our act of 1833 it is the settled law of this State that a judgment lien attaches to whatever interest in real estate the records disclose in the judgment debtor, in the absence of actual notice from other sources.
It is also contended by counsel for appellant that the redemption by Cooper was one day too soon, and therefore irregular- and void. This is a question which in no wise concerns the appellant, and which he cannot raise. Ueither the judgment debtor nor the appellant, as his grantee, sought to redeem within the twelve months allowed to them. Their title was,, therefore, gone so far as it depended upon the sale under the Till and Knevels judgment, and whether it was conveyed by the sheriff to Till and Knevels as the purchasers under the execution sale, or to Cooper as a redeeming creditor, was immaterial to them. If Cooper’s redemption was irregular, either Till and Knevels or any other person seeking to redeem might question it, but they seem to have accepted the redemption money and thereby waived any irregularity, if such there was, and persons not injured cannot complain. Blain v.. Chamblin, 39 Ill. 521.
The question then recurs, was notice brought home- to Till and Knevels or to Cooper, as their attorney, before their lien attached ? If it was not, it is unnecessary to consider whether Cooper had notice before he redeemed, as by redeeming he was substituted to the rights of Till and Knevels, and held under their judgment. The only testimony by which notice is sought to be proven is that of Judge Williamson, who was attorney for Westcott, in the suit brought by Cooper in his own right. He testifies with perfect candor and fairness, and although he thinks it was at the March Term, 1861, that he first told Cooper of Westcott’s having conveyed his land, yet he does not profess to speak with certainty as to the date of the conversation, and we are constrained to think, from other circumstances stated by him, that it must have been at some subsequent term. He says: “ I defended all the suits that were brought against Westcott in Peoria county, among which was one brought by Cooper and Moss. I recollect at one time trying to get the case continued with Mr. Cooper, telling him if he got judgment there was nothing he could collect on execution, as Westcott had sold his lot in Peoria and land in Livingston county.” How it appears by the record that both suits were commenced to the May Term, 1861. The conversation, therefore, with a view to a continuance, could not have been held at the March Term. Judgment was rendered in the Till and Knevels suit by default, at the May Term, 1861. In the Cooper suit a plea was filed by Williamson & Adams as attorneys for Westcott, and judgment was not obtained until the December Term, 1861. It must have been, therefore, in reference to a continuance of this suit that Williamson had his conversation with Cooper, as he was not defending in the other.
In 1861 there were five terms of the Peoria Circuit Court, to wit, in March, May, August, October, Hovember and December. How, at which of these terms did this conversation occur? It is .impossible to say with certainty from the evidence, but the burden rests on the appellant of showing that it occurred prior to the 17th of May, 1861. This he has failed to do. Having decided that Judge Williamson was mistaken in his impression that it was at the March Term, we are wholly unable to determine at which of the subsequent terms it took place. But the probabilities are that it was subsequent to the May Term, for at .that term it appears no jury was called in consequence of the war, and the continuance which Judge Williamson was seeking would have been, at that term, a matter of course. He says himself he thinks it probable the conversation did not take place at a term when no jury was in attendance. He further says he thinks Judge Herriman was on the bench at the time. Yet it is proven that Judge Herriman never presided until the August Term. These circumstances strongly indicate that the conversation did not take place until after the 17th of Hay. It certainly cannot be said in view of these facts that the complainant has made such satisfactory proof of notice prior to the 17th of Hay, as to justify a decree divesting title.
Objections are taken to the paroi proof made by the clerk of the Peoria Court. But the only points in regard to which his proof is material, to wit, the number of terms in 1861, what judge presided, and whether juries were in attendance, though they are facts which might appear from the record, are in the nature of matters in pads, and susceptible of proof by paroi evidence. The decree must be affirmed.
Decree affirmed.
