106 Ill. 496 | Ill. | 1883
Lead Opinion
delivered the opinion of the Court:
Two questions are presented by the record for determination : First, do the facts show a valid redemption from the master’s sale ;• and second, assuming they do, and that the court therefore improperly awarded to appellee the writ of assistance, is the error one of which appellant can complain.
While the law authorizing redemptions from judicial and execution sales is remedial in its character, and should not, therefore, be defeated on.mere technical grounds in cases fairly brought within its provisions, yet the right of redemption from such sales is purely statutory, and courts are not warranted in extending such right to a class of eases which the legislature, in its wisdom, has not seen proper to provide for. (Littler v. The People ex rel. 43 Ill. 188; Durley v. Davis, 69 id. 133.) The judgment debtor is given twelve months in which to exercise this right, and his judgment creditors, after his right is barred, are given three months additional time in which to exercise the same right. The appellant in the present ease having failed to redeem within the twelve months, it is clear that, so far as he is concerned, he then ceased to have any interest in or concern with the land itself, whatever interest he may have had in his creditors redeeming. The payment of the redemption money by Snell to the sheriff, for the use of appellee, was within the fifteen months, and the redemption was properly made, provided Snell was, at the time, a judgment creditor within the meaning of the act, and this depends upon whether the filing of the transcript of the judgment and proceedings before the justice with the circuit clerk, and causing the letters of the administratrix to be recorded in the office of the clerk of the circuit court, as heretofore stated, had the effect of making the justice’s judgment in effect a judgment of the circuit court, for it is clear none but judgment creditors in courts of record can exercise the right of redemption.
It will be perceived by reference to section 95, of chapter 79, of the Eevised Statutes, entitled “Justices and Constables,” that the justice has no authority, on his own motion, to certify to the circuit clerk a transcript of a judgment and proceedings before him, for the purpose of making the same a judgment in the circuit court. This can only be done at the instance of the plaintiff in the judgment, unless by judicial legislation a provision authorizing the administrator of the plaintiff to cause such transcript to be certified to the clerk is interpolated into the act, which would be to provide for a case about which the statute is entirely silent: This, we are of opinion, the court has no right to do. At the time of certifjdng this transcript the administratrix had no power to enforce it before the justice by execution, even if the defendant in the judgment had been perfectly silent. The only mode of enforcing it there, would have been to have brought a new action on the judgment, in the administratrix’s name. Without such action, and the recovery of another judgment, it is clear she could not have had an execution in her own name. The judgment, by reason of the death of the plaintiff, had become wholly defective and inoperative as a judgment. ' It was wanting in an essential element, namely, a party plaintiff to enforce it. We do not think the statute contemplates the certifying of -a transcript of such a judgment to the clerk of the circuit court, with the view of making it a judgment in the circuit court. The statute applies only to such judgments as might be enforced in the justice’s court, but for the want of personal estate in the hands of the defendant, out of which to make the demand. The proper course to have pursued under the circumstances of this case, would have been for the administratrix to have brought an action, in her own name, in the circuit court, or if brought before a justice, after the return of an execution nulla bona, she might, as plaintiff in the judgment, have caused the transcript of the proceedings to be certified to the clerk of the circuit court, and in either case have placed herself or her assignee in a position to properly redeem from the master’s sale. But the parties have not seen proper to take either of these courses, and they should abide the consequences.
But even if this view of the matter was not correct, and conceding the redemption was properly made, we are of opinion the appellant is not in a position to complain of the error of the court,—conceding it to be one,—in awarding the writ of assistance. As already stated, it is clear the appellant has no right in or concern with the premises in question. In contemplation of law it is a matter of perfect indifference to' him whether appellee or Snell occupies them, and if the redemption was legal the latter alone has a right to complain of being kept out of possession. It is true, as claimed by appellant, appellee was interested in having the premises to sell for as much as possible, 'and with this view perhaps he might, assuming the redemption to have been proper, have made an application for an order directing the master to proceed and sell the premises again, and on the court’s refusal to make such an order he might have taken advantage of it in this court. However this may be, it is clear that if the master or sheriff, after a redemption has been properly made, refuses or neglects to proceed to sell the premises again, as required by the statute, he and his sureties will be liable on his official bond to any one who may be injured thereby.
For the reasons stated, we are of opinion there was no error in awarding the writ of assistance, and that the order of the circuit court should therefore be affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting:
Dissenting, as I do, from the conclusion reached by a majority of the court, I wish to state my views at length of the whole case.
Concerning the facts of this case there is no disagreement. At the master’s sale, under a decree of foreclosure, in the case of Emily A. Eastman against David M. Thornley and others, made on the 1st day of May, 1880, Clifton H. Moore became the purchaser of the land in controversy, and received the usual certificate of purchase. After the expiration of fifteen months from the date of the sale, the master in chancery made the purchaser a deed for the property, as is done in case where there has been no redemption, either by the debtor himself or any judgment creditor. On the refusal of' the debtor to surrender the possession of the premises, after demand in writing, the purchaser made application to the court in which the decree was rendered, under which the property was sold, for a writ of assistance, which was awarded. From that order of the court, Thornley, against whom the writ of assistance was directed to issue, has appealed to this court. The defence made is, that the property had been redeemed from the master’s sale, and therefore the writ of assistance was improperly awarded.
Prior to the transactions just stated, Edward Porter, since deceased, recovered a judgment before a justice of the.peace, against David M. Thornley, upon which an execution was issued in the lifetime of the plaintiff, and returned “no property found.” On the death of Porter, which occurred in 1879, letters of administration on his estate were granted to Lucy E. Porter. A transcript of the judgment in favor of Porter was filed in the office of the clerk of the circuit court. On the 29th of July, 1881, Lucy E. Porter, as administratrix, filed in the same office her letters of administration, which -were there duly recorded under the provisions of the statute, and thereupon sued out an execution on the judgment, in her own name, as the administratrix of the deceased plaintiff. It was under that execution the redemption was effected, if °at all. After the expiration of twelve months, and before the expiration of fifteen months, from the date of the master’s sale, Snell, as assignee of the Porter judgment, caused the execution issued thereon to be levied on the property, and paid to the sheriff having the execution a sum sufficient to redeem from the master’s sale. The redemption money was tendered to the holder of the certificate of purchase, but he refused to receive it.
' It will be seen the principal question is, whether there was, in fact, a redemption of the property that is valid as against the purchaser at the master’s sale. No one else is complaining or resisting the redemption. So far as the purchaser at the master’s sale is concerned, no reason is perceived why the redemption is not effective, at least until it is set aside in some appropriate way. Section 95, chapter 79, Eev. Stat. 1874, provides in relation to judgments before justices of the peace, that “when it shall appear by the return of an execution first issued as aforesaid, that the defendant has not personal property sufficient to satisfy the judgment and costs within the county in which judgment was rendered, and it is desired by the plaintiff to have the same levied on real property in that or any other county, it shall be lawful for the justice to certify to the clerk of the circuit court of the county in which such judgment was rendered, a transcript, which shall be filed by said clerk, and the judgment shall thenceforward have all the effect of a judgment of the said court, and execution shall issue thereon out of that court, as in .other cases.” All the statute requires to be done in such cases was done in this case by the administratrix of the deceased plaintiff. It is said the administratrix had no authority, under this section of the statute, to cause the transcript to be filed in the office of the clerk of the circuit court. The argument is, the right is confined to the plaintiff in the suit, and after his death it can not be done, and the only reason assigned in support of the position taken is, that the statute has not so provided in express terms. This is too narrow a construction of the statute on this subject. Only general powers are conferred by law, and that which is necessary to make such powers effective must be understood to be implied in the general grant,—otherwise statutes would become so voluminous as to be impracticable of application. This principle runs through all the text-books and decisions on this subject. It is apprehended any one interested in the judgment, as plaintiff, equitable owner, or otherwise, may cause the transcript to be filed in the office of the circuit clerk, for the purpose of obtaining the benefit of this section of the statute. Narrowing the privilege to the plaintiff alone, is to render the statute inoperative in many instances, where no necessity exists for any such restricted construction.
Ordinarily, the personal representative may do anything the decedent might do if living, in regard to the collection of a judgment in favor of the decedent. In this case the administratrix is charged by law with the collection of the judgment in favor of the intestate, and it would seem she might use all the means the law has provided for that purpose. The judgment did not cease to be a judgment because of the death of the plaintiff. It could still be sued upon as a valid, subsisting judgment. Filing the transcript in the office of the clerk of the circuit court is not a judicial act, and no proceeding is to be had in the name of the deceased plaintiff. What reason exists why the administratrix, or any one else interested in the collection of the judgment, can not cause the transcript of the judgment to be filed in the office of the clerk of the circuit court, notwithstanding the death of the plaintiff? It is simply using one of the means the statute has provided for collecting the judgment.
Assuming, as may be rightly done, the transcript of the judgment before the justice of the peace was properly filed in the office of the circuit clerk by the administratrix, the statute from thenceforward gives it all the effect of a judgment in the circuit court, and then provides execution shall issue thereon out of that court, “as in other cases. ” How may execution issue in “other cases,” in the event of the death of the plaintiff ? The statute clearly provides, (section 37, chapter 77, Eev. Stat. 1874,) “the collection of a judgment or decree of a court of record shall not be delayed or hindered, or the lien created by law abate, by reason of the death of any person in whose favor such judgment or decree shall be; but the executor or administrator, or, if the decedent was an executor or administrator, the administrator de bonis non, or with the will annexed, may cause his letters testamentary or administrative to be recorded in such court, after which execution may issue or proceeding be had in the name of the executor administrator, as such, in the same manner as if the judgment or decree has been recovered in his name. ” The statute in this respect was fully complied with in this case. The administratrix of the deceased plaintiff caused her letters of administration to be recorded in the office of the clerk of the circuit court of the county where the judgment had been rendered, and where the transcript had been filed, and thereupon an execution issued from that court precisely “as in other cases” of judgment in the circuit court. The proceeding was fully warranted by the provisions ‘of the statute, and the land sold by the master in chancery could as well be redeemed under such an execution as upon an execution issued upon any judgment in the circuit court.
It is also made an objection the transcript judgment was not a lien on the land at any time before the expiration of twelve months from the date of the master’s sale. That is wholly immaterial. This court has frequently decided the judgment under which a judgment creditor may redeem from a previous sale need not be a lien on the land to enable such creditor to redeem. Phillips v. Demoss, 14 Ill. 410.
The point is also made that Thornley has no such interest as would enable him to prosecute this appeal. It would seem to be a sufficient answer to the position taken that the writ is ordered to issue against him,—that is, to be executed on him,—and under it the sheriff may seize him, and place him and his family and their household effects in the public streets. It is strange,. indeed, if the law will forbid him to inquire whether all that which affects him and his family so seriously, was being done according to law. If there is any such rule of law, the common mind will be slow to appreciate its justness. But there is another reason that leads to the same conclusion. The proceeding may affect him otherwise in a pecuniary point of view. The land may now be worth more than both judgments, and he may be in condition to redeem from the second sale, and thus save his land, or at least a part of it. In the -views expressed in this dissenting ■ opinion I am authorized to say that Mr. Justice Walker and Mr. Justice Sheldon concur. We are of opinion the order awarding a writ of assistance should be reversed.
