Easter v. Holcomb

221 Ill. App. 485, 1921 Ill. App. LEXIS 64

• Court: Appellate Court of Illinois
• Decided: March 30, 1921
• Status: Published

Opinion

Mb. Justice Boggs

delivered the opinion of the court.

This is an appeal prosecuted by appellant from an order of the circuit court of Pulaski county quashing an execution sued out by appellant and caused to he levied on certain premises formerly owned by one Ida M. Holcomb. The petition or motion filed by ap-pellee praying that said execution be quashed is as follows: (

“Now comes Martha J. Easter, by Wall & Martin, her attorneys, and moves the Court to quash the levy made under and by virtue of a certain execution issued out of the office of the clerk of; the circuit court of Pulaski County, Illinois, on the 24th day of February, 1920, on a judgment in favor of Floyd E. Britton, trustee in bankruptcy of the estate of Russell S. Holcomb, bankrupt, against Ida M. Holcomb, which said judgment has been assigned to Alice Holcomb, and which said execution has been levied on lots Nos. 1 and 2 in block No. 2, in Meyers & Holcomb’s addition to the Village of Ullin, Pulaski County, Illinois, and for grounds for said motion the said Martha J. Easter shows the following, to wit:

“On the twenty-third day of October, 1916, one Floyd E. Britton, trustee in bankruptcy of the estate of Russell S. Holcomb, bankrupt, obtained a judgment in the Circuit Court of Pulaski County, Illinois, against Ida M. Holcomb for the sum of six hundred and fifty dollars ($650.00) and costs of suit; that after said judgment was obtained it was assigned by the said Floyd E. Britton, trustee in bankruptcy as aforesaid, to one Alice Holcomb, of said Pulaski County, Illinois.

“On the second day of October, A. D. 1918, the said Alice Holcomb, as owner of said judgment aforesaid, sued out of the "office of the clerk of the Circuit Court of Pulaski County, Illinois, a writ of execution upon said judgment, and caused the sheriff of Pulaski County, Illinois, to levy the same upon said lots Nos. 1 and 2 in block No. 2 in Meyers & Holcomb’s addition to the Village of Ullin, in said county, as the property of Ida M. Holcomb, the defendant in the execution, and that said execution was levied on said property on the second day of October, 1918. Mannon Bankson, sheriff of Pulaski County, Illinois, by virtue of said execution aforesaid, advertised and sold said lots Nos. 1 and 2 in block No. 2 in Meyers & Holcomb’s addition to the Village of Ullin, situated in said county, on the twenty-third day of November, A. D. 1918, to Alice Holcomb, the owner of said judgment, for the sum of three hundred and ten dollars ($310.00) she being the highest and best bidder therefor. The same was struck off to her on the same day, to wit, the twenty-third day of November, 1918, the said Mannon Bankson issuing to her in due form a certificate of purchase. On the twentieth day of November, A. D. 1919, she, the said Martha J. Easter, purchased from the said Ida M. Holcomb, defendant in the execution, her equity of redemption in said lots Nos. 1 and 2, in block No. 2, in Meyers & Hoi-, comb’s addition to the Village of Ullin, for valuable consideration, and received a deed therefor, and, on the twenty-second 'day of November, 1919, the said Martha J. Easter deposited ivith the sheriff of Pulaski County, Illinois, the necessary funds to redeem said lots Nos. 1 and 2, in block No. 2 aforesaid, from said sale, in accordance with the statute in such cases made and provided, which said redemption money was accepted and received by the said Alice Holcomb, the owner of the judgment upon which said execution was issued, and that on the twenty-second day of November, 1919, the said Martha J. Easter received from Imon A. Bankson, the then duty elected and qualified sheriff of Pulaski County, Illinois, a certificate of redemption from the aforesaid sale, but, by, a mistake of the scrivener in the preparation of said sheriff’s certificate of redemption, it was made to appear that Ida M. Holcomb had redeemed from said sheriff’s sale, when in truth and in fact the redemption was made by Martha J. Easter, as she is ready and willing to aver, maintain and prove. On the twenty-fourth day of February, 1920, the said Alice Holcomb sued out of the office of the clerk of the Circuit Court of Pulaski County, Illinois, an alias execution upon the aforesaid judgment, and caused the sheriff to levy said execution upon said lots Nos. 1 and 2, in block No. 2, in Meyers & Holcomb’s addition to the Village of Ullin, in Pulaski County, Hlinois, as the property of Ida M. Holcomb, and advertised the same for sale on the twenty-seventh day of March, A. D,, 1920, at 1 o’clock p. m., at the south door of the courthouse in Mound City, Illinois. On the twenty-fifth day of March, 1920, Honorable William N. Butler, one of the Judges of tbe circuit court of the County of Pulaski and State of Illinois, upon petition of Martha J. Easter aforesaid, verified by the affidavit of Mark Easter, her husband and agent, made an order staying and suspending all proceedings and sale as advertised in pursuance of the levy of the aforesaid execution issued out of the office of the clerk of the Circuit Court aforesaid on the twenty-fourth day of February, 1920, aforesaid, until such time as a full and fair hearing might be had upon this motion in the Circuit Court of Pulaski County, Illinois to quash the said levy made under said execution. ’ ’

No answer was filed to said petition and no counter-affidavits of any character were filed by appellant. Appellant and "appellee both refer to said petition for the facts in connection with this appeal and the trial court made a finding that the facts set forth in the petition were not denied and that it made its findings thereon. The question presented is therefore a question of! law as to whether or not the court erred in quashing the execution.

It is first contended by appellant that appellee cannot make proof that the record showing said redemption was made by Ida M. Holcomb was an error of the scrivener.

The record discloses that after said sale on said execution, Ida M. Holcomb, the judgment debtor, conveyed her equity of redemption to appellee, and that at the time said redemption was made, Ida M. Holcomb had no right, title or interest in said premises of whatsoever kind or character. We see no reason why appellee should not have the right to show that the redemption was made by her, and that the sheriff made a mistake in showing the redemption to have been made by Ida M. Holcomb. In other words, we see no reason why appellee should be penalized on account of an error made by the officer designated by the statute to receive the redemption money.

It is next contended by appellant that even though appellee has the right to show that she in fact redeemed said premises from said sale, that nevertheless said redemption would have the legal effect of rendering the certificate issued thereunder null and void. Appellant in her brief says: “A purchaser of land subsequent to the lien of the judgment must take the land subject to the judgment. This land can only be clear of the lien or judgment while in the hands of the judgment debtor, or her assignee, by payment and satisfaction in full of the judgment.” In other words, appellant contends that in order to free said land from the lien of said judgment, either in the hands of the original judgment debtor or in the hands of her assignee, the judgment must be satisfied and paid in full. On the other hand, counsel for appellee contends that Ida M. Holcomb, judgment debtor, had the right to convey her equity of redemption to appellee prior to the expiration of one year from the date of said sale and that appellee, as such purchaser, had the right at any time prior to the expiration of one year from the date of the sale to redeem said premises and, when so redeemed, conld hold said premises free and clear from the lien of said judgment. We are of opinion that appellee is correct in her contention.

Section 18, chapter 77 of Hurd’s Revised Statutes (J. & A. ¶ 6764) provides: “Any defendant, his heirs, executors, administrators or assigns or any person interested in the real estate through or under such defendant may, within twelve months from the date of such certificate, or within fifteen months therefrom if there shall he no redemption by a decree or judgment creditor as hereinafter, provided, pay to the sheriff, master in chancery, or other officer issuing said certificate, or his successor in office, for the benefit of the decree or judgment creditor, his executors, administrators or assigns holding such certificate, the amount due as set forth in said certificate, together with interest thereon at the rate of six per centum per annum from the date of said certificate, and all other sums due under .said certificate according to the provisions of this act. Said certificate shall thereupon he null and void.”

The provisions of this section expressly give the right to a creditor or assignee of the owner of the equity of redemption to redeem at any time within one year from the date of sale under an execution.

Section 21 of said chapter (J. & A. ¶ 6767) provides the method of making successive redemptions by judgment creditors, and section 22 (J. & A. ¶ 6768) provides for the preference and seniority in making such redemptions. It will therefore be observed from the reading of the statute that after the first sale on an execution the only person entitled to redeem within one year is the judgment debtor, or his assignees or grantees or someone claiming by, through or under them. In other words, there is no provision of the statute allowing a levy and sale of the debtor’s equity of redemption prior to tbe expiration of one year from tbe date of sale. From tbis we draw tbe conclusion that at any time prior to one year from tbe date of sale under an execution, tbe judgment debtor can convey bis equity of redemption free and clear of any judgment bens. If tbe grantee or assignee of tbe equity of redemption sees fit within one year to redeem from tbe sale be bas tbe right to do so, and, having done so, could seb tbe premises free and clear of any balance that might remain unpaid on tbe judgment on which execution was issued.

In Ogle v. Koerner, 140 Ill. 170, at page 179, tbe Supreme Court says: “When tbe redemption is made by a party primarily liable on tbe mortgage debt, it may be that tbe same property may be resorted to again for tbe purpose of subjecting it to tbe payment of an unpaid balance due on tbe mortgage, but that is not because of any right to enforce tbe mortgage lien against tbe same property a second time, but because of tbe rule of law which subjects all tbe property of a debtor to tbe payment of bis debts until they are satisfied in full. But where tbe redemption is made by a party not liable upon tbe mortgage debt, the mortgage lien having been exhausted, tbe property cannot be subjected a second time to tbe satisfaction of tbe same ben. Tbe party redeeming does so for bis own benefit, and tbe holders of tbe senior mortgage having, by tbe sale, become entire strangers to tbe property, are in no position to derive any advantage from tbe redemption. Tbe sale having been made at public auction, and in tbe manner prescribed by the statute, tbe presumption, as between tbe.senior and junior incumbrancers, is a conclusive one, that tbe property bas produced its entire value, and that value having been once applied to tbe senior mortgage, the lien bas accomplished its full purpose and is thereafter functus officio

Again, on page 181, the Supreme Court says in the same case: “The view we have taken is supported by the case of Seligman v. Laubheimer, 58 Ill. 124. In that case the land in controversy was subject to a senior and a junior mortgage, and a decree of foreclosure was rendered finding the amounts due on both mortgages, and declaring one to be a first and the other a second lien. Under the decree the land was sold for a sum less than sufficient to pay the amount of the first mortgage. Before the expiration of twelve months from the sale, the junior mortgagee redeemed. On application of the senior mortgagee to have the balance due him ascertained' and declared to be a still subsisting lien on the mortgaged property and • for a resale of the property, it was held that the lien of the first mortgage was extinguished, and that the junior mortgagee, redeeming under the statute, took the land free from the lien of the first mortgage. The following .was a portion of the reasoning upon which the decision Was based: ‘What was the effect of the redemption? The second mortgagee, who redeemed from the sale, was the grantee of the mortgagors. By the express provision of the statute, he had the right to redeem, the lands, by the payment of the amount bid by the plaintiff in error. If he had filed “a bill in chancery to redeem, he would then be compelled to do equity, by the payment of the prior mortgage debt, before he could obtain relief. But this redemption was a statutory right. Upon the payment of the amount bid, with interest, the original certificate of purchase was null and void. The equity of redemption established by the courts is entirely different from the statutory right. The one is governed by the principles of equity jurisprudence; the other is controlled, in its operation and effect, entirely by the statute. In the enforcement of the one right, the party must pay all that is equitably due; in the other he need only comply with the statute.’ ”

In this case the court held that the junior mortgagee was the grantee of the holder of the equity of redemption and that the junior mortgagee, having redeemed from the sale made under the senior mortgage, had the right to have its lien next satisfied even though a balance remained unpaid on the senior mortgage.

If the senior mortgagee is of the opinion that the land was worth more than the amount hid by him, it was his duty to bid all that he felt the property was worth in satisfaction of his mortgage, and, if he did not do so, then he loses the right to have a lien against the equity of redemption for the balance owing on his indebtedness.

We feel that while this case was one with reference to a foreclosure in equity of a mortgage that the principles laid down by the court in the decision of this case govern in the case at bar.

We therefore hold that appellee, having redeemed said premises, could hold the same free and clear from the balance unpaid on the judgment held by appellant.

No serious contention is made by appellant that it was not the proper practice for the court, if in its judgment the property was not subject to the lien of the execution, to enter an order quashing the samé. This practice is supported by the case of Sandburg v. Papineau, 81 Ill. 446; and Commercial Nat. Bank v. Stoddard, 70 Ill. App. 79.

We are of the opinion and so hold that the court did not err in quashing the execution in this case and the judgment of the trial court will therefore be affirmed.

Judgment affirmed.