146 Ill. 363 | Ill. | 1893
delivered the opinion of the Court:
It is not true, as seems to be supposed, that the cross-bill of Arkell and Drexell had the effect ,of opening up the litigation which was brought to a final determination July 14, 1883. It was then found that the interest of Mrs. Vail, appellant, and those under whom she claims, in the property there in dispute, and of which the lot mentioned in the original bill in this cause formed a part, was as mortgagee, only, and a foreclosure thereof decreed, and a sale was ordered and made to satisfy the amount found to be owing. The sale under said decree was made November 5, 1883, and no redemption having been made, a conveyance of the property was made to the purchaser, Joseph W. Drexel. The decree of sale, and deed made thereunder, if valid, had the effect of extinguishing the right and interest of appellant in and to the property.
It is alleged, however, that the master never made a valid conveyance. This is a mere conclusion of the pleader. That a deed was made is not questioned, and as no defects are alleged, or the deed set out so that the court can determine its validity, it must be presumed to have been in conformity with the decree authorizing the same.
It is- also urged that the allegation of the bill that the master sold without having given proper notice, gave the court jurisdiction to entertain the bill to set aside the sale. The matter complained of is, as alleged, that the master commenced the publication of notice of the sale prior to the expiration of the time fixed for payment by the decree. The decree was entered July 14, 1883, and the first publication of notice was October 13, 1883. The time fixed for the payment was thirty days from the rendition of the decree.
It is, however, contended, that the decree was amended October 9, 1883, and although the amendment was made by stipulation of the parties, and was purely formal, the thirty days began to run from that time. An- examination of the record shows that the amendment consisted merely of a correction of a clerical error, and the insertion of a clause permitting judgment creditors to redeem. The amendment in nowise changed the form, force or effect of the decree. It was a final decree July 14, 1883, and remained in force, authorizing the publication made. Black on Judgments, 154; Smith v. Wilson, 26 Ill. 186; Coughran v. Gutchens, 18 id. 390.
It is said that error intervened in rendering said decree, because the court departed from the mandate of the Appellate Court, upon appeal to that court from a former decree rentiered in said cause. If this was conceded, which it can not be, the decree would be erroneous but not necessarily void, and appellant had ample remedy by writ of error or appeal, had she prosecuted the same. It is not alleged that appellant was under any disability, or that all the matters of which she now complains were not within her knowledge, nor is it pretended that anything has occurred since the rendition of the decree of July 14, 1883, that would in any manner change the rights of the parties. Practically eight years had elapsed prior to the filing of her cross-bill, in which appellant has slept upon her rights, if any she had, and the familiar doctrine that courts of equity will not lend their aid in enforcing stale claims must apply. Hamilton v. Lubukee, 51 Ill. 415; Dempster v. Wert, 69 id. 613; Munn et al. v. Burgess, 70 id. 604; Hay v. Baugh, 77 id. 500; Hoyt v. Pawtucket Inst. for Savings, 110 id. 390.
It is insisted, however, that because, in the litigation with Miller, appellees Arkell and Drexel, by their cross-bill, claimed title to the property in controversy in said Joseph W. Drexel and his heirs, and sought to set aside the leasehold estate claimed by Miller, appellant may, on cross-bill, re-litigate the matters that were adjudicated in the former proceeding. Her cross-bill is not, either in its frame or prayer, a bill of review or a bill in the nature of a bill of review, nor does it seek to set aside the decree for fraud. As before, seen, the right and interest of appellant in the property in question were adjudicated and settled by the decree in the former case, rendered July 14, 1883, and until reversed, annulled or impeached that decree is conclusive.
We are of opinion that upon both of the grounds stated the demurrer to the cross-bill of appellant was properly sustained. It will not be necessary to discuss the further points made.
The judgment of the Appellate Court affirming the decree dismissing the cross-bill will be affirmed.
Judgment affirmed.
