| Ill. | Sep 15, 1869
Lead Opinion
delivered the opinion of the Court:
This was a bill in chancery to remove a cloud upon the title of complainants to a certain lot in the city of Chicago, interposed, as alleged, by a judgment in an attachment suit brought by the Fifth National Bank of Chicago against the firm of Bell & Deverill, and which complainants alleged had been fully paid and satisfied. This is the pivot on which the case turns. The evidence must settle it. The most careful examination we have been able to give the testimony satisfies us, that the attachment and levy and the judgment were obtained in the interest of Bell, and have been since attempted to be kept alive exclusively for his benefit, so that he might make something out of property his insolvent partner, Deverill, once owned. The bank president and Bell went to the attorney’s office to have the attachment papers prepared, and he consented to the entry of the judgment against himself jointly with Deverill. The cashier of the bank testifies, and the books of the bank show it, that this judgment was afterwards fully paid in cash by Bell. The claim of Lewis as a purchaser of it is mere pretense. He says, in his answer, he paid sixteen hundred and ninety-five dollars for it. He testified he paid seven hundred and twenty-two dollars for it, while the assignment by the bank states the consideration at six hundred and ninety-five dollars. The testimony of Lewis shows at most but a loan of money to Bell, which, if he could collect the amount out of Deverill’s property, should be credited to Bell. It was a rare scheme devised by these gentlemen to keep the judgment alive, but, as it had been paid months before, it can not avail. The judgment was then discharged and satisfied, and nothing could vitalize it.
It is not important to consider the effect of the sheriff’s deed to Church. It is sufficient for complainants to have this judgment removed. They show they are in a position to demand this, and it is but common justice it should be accorded to them. The judgment is paid, and .being so, complainants should not be annoyed by it. The decree of the court below, therefore, requiring one of the complainants, Flora Tompkins, to pay to Lewis seven hundred and ten dollars, as the condition of releasing the lot from the attachment levy and judgment thereon, was erroneous, and for that error the decree must be reversed.
Decree reversed.
Rehearing
Upon a petition for a rehearing being presented on behalf of the defendants, at the September term, 1870, the court delivered the following additional opinion:
We adhere to the principles laid down in the opinion filed in this cause. We refer to Russell v. Hugunin, 1 Scam. 562, and Gillett v. Sweat, 1 Gilm. 475, as fully sustaining the views therein expressed. Upon further consideration, we are of opinion that there may be a small amount due on the judgment of the bank against Bell & Deverill. The court below will credit the said judgment with the sum of one thousand and sixty-seven dollars and ninety-one cents, of date January 23, 1867, and also the further sum of five hundred and forty-seven dollars and nineteen cents, February 20, 1867, and ascertain the balance due, and upon payment of the amount so found, by the complainant, Flora Tompkins, to the clerk of said court, for the use of Hugh Lewis, the court will decree relief as in its former decree.
Behearmg denied.