173 Ill. 157 | Ill. | 1898
delivered the opinion of the court:
First—The appellee makes a motion in this court to dismiss the appeal of the appellant from the judgment of the Appellate Court. The reason, urged in support of this motion, is, that the appellant admitted in his answer to the cross-bill, that whatever interest he had in the certificate of sale, issued upon the execution sale, had been assigned to other parties, and that, by reason of such assignment, he had no interest in the premises described in the pleadings. In support of this contention, the well known rule is invoked, that a party cannot assign as error that which does not affect him or his rights, but is prejudicial only to others who do not complain. (Press v. Woodley, 160 Ill. 433). The rule in question does not apply to the present case. Whatever assignment or transfer appellant made of his interest in the lots was made pendente lite. Those, who purchased the certificate of sale from him, were purchasers pendente lite. If the court ruled correctly in refusing to allow Woodland to be substituted as a defendant for the appellant, it must have been upon the ground that he purchased his interest pendente lite. The law is, that the final decision of the court will be binding, not only on the parties litigant, but also on those who derive title under them by alienations made pending the'suit. (Norris v. Ile, 152 Ill. 190). It is apparent, that Woodland, holding by assignment from the appellant, has important rights here at stake. The decree sets aside the certificate of sale, of which he is the owner, and the sale in pursuance of which he obtained that certificate. If it be true that he has paid §17,453.24 to redeem from the sale, made under the decree of sale entered upon the original bill, his interest in the present decree is of great moment to him. His right to redeem from the sale, made under the Flint trust deed, depends upon the validity of the title, obtained by him under the judgment against Mrs. Winn. We pass no opinion upon the question, whether or not the court ruled correctly in refusing to allow Woodland to be made a party defendant in pursuance of his motion and petition; but, it being apparent that the decree entered by the court under the cross-bill seriously affects his rights, then, if the appellant cannot take an appeal, the decree cannot be reviewed in so far as it affects Woodland’s interests, because Woodland is not a party to the proceeding. It is well settled, that, while a grantee or vendee or assignee pendente lite may not be a necessary party to the proceeding, yet his interests are represented by the vendor or grantor or assignor, who is a defendant to the proceeding. Thus, in Norris v. Ile, supra, we said: The purchaser pendente lite “is not a necessary party, because his vendor or grantor continues as the representative of his interests, and the plaintiff or complainant may ignore liis purchase and proceed to final decree against the original parties.” It follows that, under the circumstances of this case, appellant has a right to appeal as the representative of those holding under him, who are not parties to the suit. It would be a gross injustice to hold, that a purchaser pendente lite is not a necessary party to a proceeding, and* yet to hold that he has no right to appeal, or right of review by writ of error, through the "defendant under whom he holds. The decree here was entered against the appellant, and he was thereby subjected to costs. The appellant is the only one, who can properly prosecute and maintain this appeal under the ruling of the court below, refusing to allow his assignee to be made a party. The motion to dismiss the appeal is accordingly denied.
Second—The sole ground, upon which the decree of the court below sets aside the sale under appellant’s judgment, is, that, after the judgment was rendered, an agent or-attorney of appellant collected $170.00 out of a note or judgment, held as collateral security to the note upon which the judgment by confession here in controversy was entered, and that appellant did not see to it before the sale that the sum of $170.00 so collected was credited upon the execution. A mortgage sale or an execution sale is not necessarily invalid, because the property is sold for more than is in fact due. It depends upon the question whether the withholding of the credit on the mortgage or execution is done in fraud of the rights of the mortgagor or judgment debtor. (Millard v. Trttax, 50 Mich. 343.) The excessive claim is a circumstance only of more or less importance according to its magnitude or apparent want of good "faith, if an attempt is made after-wards to redeem from the sale. If there is no want of good faith in the failure to make the credit, the judgment or mortgage debtor may bring suit against the plaintiff in judgment, and recover the amount of the excess. It has been said: “A party has no rig'ht to a hearing after judgment except for causes which touch the honesty and justice of the cause.” (1 Black on Judgments, sec. 352.) It then becomes necessary to look into the facts in regard to the credit, to see if there was any fraud or want of good faith in the failure to credit the $170.00 on the execution. The judgment by confession was entered up upon a judgment note against Jennie F. Winn, which was originally for $4500.00, but which, before the judgment was rendered, had been reduced by payments. Jennie F. Winn had a son, named Harry J. Winn, for whose benefit the loans of $10,000.00 and $3500.00, secured by the trust deeds mentioned in the statement preceding this opinion, were made. A man by the name of Lee had given a note for §1920.00 to a man by the name of Holmes. Charles B. Moore, an attorney and brother of the appellant, William J. Moore, induced Harry J. Winn to purchase this note against Lee. The note was in some way held as collateral by Winn, or Charles B. Moore for the payment of the note for $4500.00 held by the appellant. The original note for §1920.00 was taken up, and a judgment note was obtained from Lee, payable to the order of appellant, and judgment upon this note was entered up in favor of appellant with his knowledge. It appears clearly, however, that appellant himself had nothing to do with the collections that were made upon the note or judgment against Lee. The judgment was entered up by Charles B. Moore at the request and with the consent of Harry J. Winn. It' seems to be doubtful from the evidence, whether Charles B. Moore was any more the attorney of his brother than he was of Harry J. Winn. The latter was desirous of collecting as much as possible from Lee, in order that the amount of such collections should be applied upon the judgment by confession in favor of appellant. About June 13 or 14, 1893, $150.00 was collected by Charles B. Moore, or Harry J. Winn, upon the Lee note or judgment and handed over to appellant, after appellant had obtained his judgment by confession, and was credited by appellant upon his execution. Between June 14 and August 1, 1893, when the sale' took place, Charles B. Moore collected §300.00 upon the judgment against Lee. The court below in its decree charges appellant with §170.00 of this §300.00. The evidence, however, is clear and conclusive, that the appellant knew nothing about this collection, until after the sale under his judgment was made, and he had bought in the property. Charles B. Moore, claimed that the §300.00 was due him for legal services performed for Harry J. Winn, and that, as the judgment against Lee was really owned by Harry J. Winn, he had a right to retain the sum for his legal services. Lee was largely interested in hotels built upon leased property, and failed. After his failure, a judgment creditor filed a creditor’s bill, and had a receiver appointed. Charles B. Moore intervened in this proceeding in behalf of Harry J. Winn, and sought to reach some of the assets in the hands of the receiver. It was for such services, as well as services for entering up the judgment against Lee, that he claimed the right to be paid. The court below actually allowed Charles B. Moore, out of the §300.00, §100.00 for attorney’s fees, and §30.00 for disbursements made by him, leaving §170. 00 which, it is alleged, should have been credited on the execution by the appellant. Charles B. Moore swrnars, that his brother, William J. Moore, knew nothing about this collection until after the sheriff had sold the property. Appellant also swears to the same thing. There is nothing, so far as we have been able to discover, to contradict this testimony. Upon the facts, therefore, we are of the opinion, that there was no fraud committed by the appellant, and no want of good faith, ■ which justified the court below in setting aside t-he sale under the judgment, and the certificate issued thereon.
Accordingly the judgment of the Appellate Court, and the decree of the circuit court are reversed, and the cause is remanded to the circuit court.
Reversed and remanded.
