29 Ill. 553 | Ill. | 1863
When the facts of this case are once clearly-comprehended, there is no difficulty in deciding it. The whole case is reduced to the simple question of fact, whether Hays and Williams are chargeable with notice of this mortgage at the time of their purchases. The mortgage was executed before, but not recorded till after, Hays’ judgment became a lien, but before Williams’ judgment, under which he redeemed from the sale under Hays’ judgment, became a lien.
The first and important inquiry is, was Hays chargeable with notice of this mortgage ? The evidence, we think, is sufficient to settle this question satisfactorily. There is no pretense that Hays had any personal knowledge, or even intimation, of the existence of the mortgage. But the notice relied upon is to his agent. The law is not disputed, that notice to an agent 1 or an attorney, when received in the course of the business of .the agency, or under such circumstances as induce the satisfactory belief that it was received while transacting such ■ business, is as effectual as notice to the principal personally. First, as to notice to Purcell, Hays’ agent, who brought out the note and employed Milligan and McComas to sue the makers. He denies notice. Peyton swears he heard Gate-wood inform him, that his land was already mortgaged, but did not state to whom. Milligan testified, that the mortgage* to Gatewood’s grantors was mentioned to Purcell, at an interview before judgment was rendered, and McOomas swears, distinctly and circumstantially, that he told Purcell of that mortgage, as it had been acknowledged before him as notary public. Now if this testimony was competent, it overcomes the denial of Purcell beyond all question, and settles the matter. But it is by no means clear, that what was said at this time between the agent and the attorneys was not a privileged conversation, which even Williams may insist shall be kept sacred. It was a professional interview with the attorneys on the subject-matter about which they were retained, and none but Hays, the client, should be permitted to waive its confidential character.
But waiving this question of notice to Purcell, notice to the attorneys was as effectual as notice to the agent. As to that matter, they as much represented Hays, as did Purcell. Had they notice ? Upon this point there can be no question. McOomas swears that he took the acknowledgment of the mortgage. He knew what it was, and told Milligan and Purcell of it. Now this information was not acquired in any confidential relation with Hays, but long before any retainer by him, and hence he had the right and was bound to disclose it. Here then was notice to McOomas proved in a legitimate way, and that was notice to his client, for the law conclusively presumes, that he communicated that notice to his client.
Under the operation of this notice, Hays’ judgment only became a lien upon the equity of redemption, and that was all that was sold, leaving the mortgage a prior lien according to its date. As to-Williams’ judgment, that never became a lien till long after the mortgage was recorded, and hence was necessarily subject to it. When he redeemed from Hays’ sale, he could redeem no more than was sold under Hays’ judgment, that is to say, the equity of redemption* and it was only upon that, as we have seen, that his own judgment could attach as a lien ; and we are quite unable to appreciate, upon what principle he expects to get rid of the incumbrance of the mortgage by the operation of two judgments, both of which were subject to it. Had Hays not been chargeable with notice, so that his judgment had become a prior lien to the mortgage which attached to the entire estate, then indeed a different question would be presented. But we do not now propose to determine what estate the redeeming judgment creditor, whose judgment is junior to the mortgage, acquires, by a sale under such junior judgment upon a redemption from a sale under a judgment senior to the mortgage. In this case, we have no trouble in coming to the conclusion that the mortgage retains its seniority over both, as much as over either.
It is most earnestly contended by the counsel- for the plaintiff in error, that the last clause of the twenty-second section of the statute, gives to Williams all the rights he would have had if he had been a stranger, and the original purchaser at the sale under Hays’ judgment, instead of Hays, thus giving him the character of a bona fide purchaser without notice. The language relied upon is this: “ And if any creditor shall redeem such lands or tenements as aforesaid, it shall be the duty of the sheriff, or other officer, on the expiration of fifteen months from the time of such sale, to execute a deed to such creditor, as the original purchaser, and such deed shall be as valid and effectual in law, as if such creditor had been the original purchaser.” When this language is considered in connection with the balance of the act, it is not easy to comprehend its meaning. It contemplates the execution of a deed under circumstances which are not only not provided for by the act itself, but which are absolutely repugnant to the other provisions of it. It seems to contemplate the execution of a deed to the redeeming creditor, upon the mere. fact of redemption, and the lapse of time, to wit, the expiration of fifteen months, without any subsequent sale. How when the whole act is taken together, it is very clear that the legislature did not design that a deed should be executed under such circumstances ; and we should have great difficulty in sustaining such a deed, notwithstanding this language is found in the act. In the previous sections, very minute and clear provision is made for proceeding in case of redemption by a judgment creditor. Section fourteen provides, that at any time within three months after the expiration of twelve months from the sale, any judgment creditor may redeem, by suing out an execution upon his own judgment, and placing the same in -the hands of the officer, who shall indorse thereon a levy upon •the same lands, and then the redeeming creditor shall pay to the officer the amount- for which the premises were first sold, and then the officer shall file a certificate of redemption and advertise the property for. sale, under the new execution.
The next section provides, that at the sale under the execution "issued upon the judgment upon which the redemption was made, the redeeming creditor shall be considered as having bid the amount of the redemption money deposited by him, and if there be no higher bid, the land shall be 'struck off to him, and a deed immediately executed, and that no other redemption shall be allowed. But if there be a higher bid, then the land shall be struck off to the highest bidder, and a certificate of purchase made to the purchaser; and then any other judgment creditor shall be allowed to redeem within sixty days, and the same process shall be gone through ; and so long as the premises shall be sold for more than the redemption money, and there are judgment creditors to redeem, redemptions shall be allowed within sixty days of the day of sale, from which the redemption is made.
Here are two contingencies, under which the sheriff is required to make a deed of premises, which have been redeemed from a former sale by a judgment debtor, neither of which has the least reference to the expiration of the fifteen months. The first is, where the premises are struck off to the redeeming creditor, upon the implied bid for the amount of the redemption money, when the deed is to be made immediately, whether the fifteen months have expired or not; and the next is, where there has been a higher bid, when there may be redemptions within periods of sixty days, without limit, so long as there are judgment creditors willing to redeem, so that years might elapse before the sheriff would be authorized to make a deed to any purchaser. It is very certain that the language quoted from the twenty-second section can have no reference to either of these cases, for in the first, the purchaser is not bound to wait till the end of fifteen months for his deed ; in the last, he may be compelled to wait much longer. To what, then, does it apply ? Certainly to no case provided for in this statute. A glance at the previous legislation on this subject, will clearly explain how this has happened. By the territorial act of 1807, real estate was first authorized to be sold on execution. From that sale there was no redemption, but a conveyance was at once made. And so the law stood till 1825, when an act was passed, by the eleventh section of which the debtor was allowed to redeem from the sale, within twelve months, and the twelfth section provided that if the defendant should fail to redeem within the twelve months, then any other judgment creditor might redeem in the same manner as the debtor could, and that the redeeming judgment creditor should “ be entitled to all the rights of the original purchaser.” The next section of that act is the original, of which this twenty-second section of our law is a literal copy. It was a very sensible section when passed, for it was precisely adapted to the mode of redemption therein provided for; but in our present law it has no sense or meaning, because there is no mode of redemption authorized, upon which it can operate, or to which it can apply. But to proceed with the history of our legislation on this subject. The mode of redemption provided by the law of 1825, continued till 1841. Then an act was passed, amending the law of 1826, providing for redemption from sales on execution, as it now exists. The whole of that act is embodied in the thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-third and twenty-fourth sections of our present law. But in that amendment the thirteenth section of the law of 1825, which now constitutes the twenty-second of our present law, was left out, and in fact repealed, because it was inconsistent with the mode of redemption provided in the new act. And so our statutes remained unincumbered by this unnecessary section, till the revision of 1845, when it was again incorporated into our statutes, without any reason or purpose, so far as we can see.
"We have, in the cases of Sweezy v. Chandler, and McLagan v. Brown, 11 Ill. 445 and 519, referred to this twenty-second section as applicable to the present law, and as& characterizing the title acquired. But in both cases it is alluded to, as a make-weight, and without careful consideration ; while the cases were decided upon other grounds. And we may here remark, that this infirmity of the human mind which prompts us to seek every possible support for the conelusions arrived at, has led to more embarrassment in applying judicial decisions as precedents, than any other one cause. We too often forget that an opinion with one good reason for a decision, is better than an opinion with one good reason, and one that is not good. We know of no other way to even mitigate this evil, than for courts, when thus betrayed into error, to set themselves right on the first opportunity.
The decree must be affirmed.
Decree affirmed.
