68 Ill. App. 53 | Ill. App. Ct. | 1896
delivered the opinion oe the Court.
A reversal of the decree is asked in this case because the court did not decree that appellant’s judgment be paid before any of the proceeds accruing from the sale of the land should be applied toward the payment of the debts of Havens, MacKinlay & Co. He claims that he is entitled to a preference over other creditors because of his superior diligence in discovering and uncovering the property of the debtor.
It is a well established doctrine that a creditor who has, by calling to his aid a court of equity, and by the exercise of his superior diligence, discovered and uncovered property which could not be discovered and seized upon by execution at law, is entitled to a preference over other creditors.
But the obstacle which stands in the way of appellant .successfully invoking the aid of that doctrine is that he has discovered nothing. The five acre tract was included in the deed of assignment and the homestead exemption ■claimed. The assignee offered it for sale and made efforts to have creditors bid it in. Appellant was well advised of that fact. There has not been a time when the assignee Avould not have sold the property had there been an offer for it. It is quite likely there were no bids because it was subject to the homestead exemption. Appellant has discovered no new assets. He has uncovered nothing.
The assignment was in force at the time this bill was filled. It was so recognized by appellant because he asked for an order compelling the assignee to sell the property. Tears ago he could have notified the assignee to sell. After waiting a number of years he calls upon a court of equity to order the assignee to do a thing which he could have had done by the mere asking of the assignee. That act does not show such superior diligence as would entitle him to a preference.
We see nothing wrong with the decree below. Decree affirmed.
