94 Ill. 481 | Ill. | 1880
delivered the opinion of the Court:
The bill in this case is framed with a view to have a resulting trust in the lands in litigation established in favor of complainant, and if that could not be done, to have the money advanced to purchase the laud at sheriff’s sale declared a lien on it and the land subjected to sale for its payment. The circuit court held the facts proved established a resulting trust and decreed accordingly. After a careful consideration we are of opinion the evidence sustains that view of the case. There cari be no doubt that complainant bid off the land at the sheriff’s sale in his own name for the sum of $800, paid the money to the sheriff and received the usual certificate of purchase. Complainant was advised it was doubtful whether it was lawful for him to become a bidder at the sale, and it was for that reason he did, on the same day, surrender the certificate he had received and procured the sheriff to issue another one in the name of defendant, Samuel B. Mathis. Complainant retained the certificate, however, until after the time of redemption had expired, when, under some agreement, he let defendant Samuel B. Mathis have it. Thereupon Mathis assigned it to his wife, Sarah Mathis, who immediately took a deed for the land, and has since been in possession with her husband.
It is apparent Sarah Mathis was not an innocent purchaser for a valuable consideration, and that she was familiar with the facts of the transaction before she took an assignment of the certificate. Some twenty-six years ago she let her husband have $600 that she had received from her grandfather, and that is all the consideration, it is claimed, there was passing from her to her husband for the assignment. Where laud is purchased with the money of one person and the deed taken in the name of another, a trust results by operation of law in favor of the person whose money is used. Coates v. Woodworth, 13 Ill. 654; Smith v. Smith, 85 id. 189. The facts proved bring this case exactly within the rule stated. Complainant furnished all the purchase money of the land, but the deed was taken in the name of defendant.
But it is said there can be no resulting trust in favor of complainant, for the reason, it is shown he procured the sheriff to issue a certificate, not to the purchaser of the land at the sheriff’s sale, but to one who was not a purchaser. That fact, it is insisted, will bar all relief, but for what reason is not apparent. It was simply a transfer of the bid made by complainant to defendant and permitting him to take the certificate. That could wrong no one, and how it contravenes any public policy is not perceived.
It was not unlawful for complainant to become a purchaser at the sheriff’s sale. The judgment on which the execution issued and under which the sale was made was rendered on a promissory note made by William Busby as principal, and complainant and another as his sureties. An execution creditor may become a purchaser at his own sale, and no reason is perceived why one of two defendants at a sale on joint execution may not become the purchaser of the property of the other. In a case like the one at bar there is great propriety in it. It might be the only speedy mode of securing himself against loss on account of his suretyship. It is not against any sound public policy, where no relations of trust exist between the parties, and where such purchaser does not thereby obtain any unconscionable advantage over his co-defendant, for whom he is only surety. In Gibson v. Winslow, 38 Penn. 49, it was held, one joint judgment debtor might become the purchaser of his co-defendant’s land at a sale on an execution issued on a joint judgment. The same principle is stated in Herman on Executions, sec. 208, and in cases cited.
There is nothing in Coggeshall v. Ruggles, 62 Ill. 401, in conflict with the views here expressed. There, the debtor whose laud was sold filed a bill to set aside the sale on the ground the judgment was satisfied before the sale was made, and it was on that ground the sale was set aside by the circuit court. The principle of the decree was affirmed on appeal, but this court imposed terms upon which the relief should be granted. The reasoning of the court is to the effect that where the relation of principal and surety exists the surety may become the purchaser of the principal’s property under an execution against both of them. On principle, there is no reason why he may not.
Another objection confidently relied on is, that there can be no resulting trust under the facts of the case, because of a subsequent agreement to divide the lands in proportion to their respective claims against the principal judgment debtor. It would seem to be a sufficient answer to the position taken, that defendant in his testimony denies that any such agreement was made. It is no doubt true that complainant was willing, as a settlement of the controversy, to take the money he had paid out, with interest, or perhaps to take land for it at a certain price per acre, but defendant never performed or offered to perform any such agreement, and the mere offer of complainant to accept a settlement ought not to bar him of the relief he would otherwise be entitled to.
ISTo error is perceived in the record, and the decree will be affirmed.
Decree affirmed. •
