36 Ill. 523 | Ill. | 1864
delivered the opinion of the Court:
On the hearing in the court below, complainant's bill was dismissed, which is now assigned for error. It appears, that Gridley advanced his own money to redeem the land from Walker’s purchase, and it does not appear that it has ever been refunded, nor does complainant offer to repay him. It is, however, contended that a judgment was confessed by Yandeventer in favor of appellee as a security for the advance of the sum necessary to redeem the lands. In his answer, appellee denies that such was. the arrangement, but, on the contrary, insists that the object in confessing the judgment was to enableappellee to make the redemption as a judgment creditor. And Yandeventer, who had previously owned the land and who had sold it to Strain before his administrator sold to complainant, corroborates appellee’s sworn statement in his answer.
It appears that Yandeventer’s deed to Strain was executed before Walker’s judgment was recovered against Yandeventer, but Strain had failed to place it upon record. Whether Strain had entered into the open, visible possession of the land before Walker obtained his judgment against Yandeventerdoes not appear. Had this been the case, Walker and his assignees could have taken no title, as such possession would have been equal notice, with recording, to.-subsequent purchasers^ But as this does not appear, we may safely infer that the judgment became a lien before Strain went into possession.
Appellant, when he purchased at the administrator’s sale, acquired such title only as was then vested in the heirs of Strain. If it was then subject to the lien of Walker’s judgment, he acquired it with that infirmity, and to preserve his title he must free it from the incumbrance. The doctrine of caveat emptor applies to such sales. Appellant had full access to the records of the county, and he must be presumed to have examined them in reference to the title before he purchased. If he failed to do so, it was his own negligence, and he must abide the consequences of his omission to protect his interest. It may be that he has his remedy over against Yandeventer, for the amount the land has contributed to pay his debts, but that question is not now before us and we refrain from its discussion. That it was the duty of Yandeventer to redeem this land which he had previously sold, from the sale under Walker's judgment, there can be no question. And we think it is apparent that it was his design to do so when he made the arrangement with appellee.
If, however, this was so, as he failed to furnish the money for the purpose, appellee cannot be deprived of the title he acquired until his money has been refunded. We think it is clear that he took the assignment of the certificate of purchase, not for his own benefit, but for Yandeventer, and that he was to hold the lands as security for the repayment of the money. And although he was to redeem with the judgment, which was ■ confessed for that purpose, the assignment resulted practically in the same end. Had he redeemed as a judgment creditor ¿and no person had advanced upon his bid, it would have been struck off to him for the redemption, and he would have been at once entitled to a deed, or, if more had been bid, the purchaser would have received a certificate of purchase, entitling him to a deed at the expiration of sixty days if not redeemed in the meantime from that sale.
There is nothing in this record from which it can be inferred .that appellee was to release this land until his money was repaid. He positively denies, in his sworn answer, that the judgment or any other security was taken to release the land, and this denial is not overcome by proof equivalent to the testimony of two witnesses. Having received the assignment of the certificates of purchase as a security for the money advanced, the title acquired by the deeds from the sheriff, on those certificates, are a like security, and he cannot be required to part with his title until his money has been repaid. This not being done, or even offered, the court decided correctly in dismissing the bill, and the decree must be affirmed.
Decree affirmed.
