Heinroth v. Griffin

149 Ill. App. 103, 1909 Ill. App. LEXIS 426

• Court: Appellate Court of Illinois
• Decided: April 28, 1909
• Docket: Gen. No. 5,127
• Status: Published

Opinion

Mr. Justice Dibell

delivered the opinion of the court.

It is first contended that the decree in Burnham v. Roth is not a bar to the relief sought in this case because said decree was so worded that it never became effective. Said decree (see 126 Ill. App. on page 238) directed a sale of the premises by the master and that there should be considered as bid at such sale by Husak $12,230.35, with interest at six per cent, from the date of the redemption by Mrs. Both to the date of the sale, and the costs of the sale; that the complainants be required to raise the bid; and petitioners in their brief here say that the decree provided that if complainants or some one of them failed to make such bid, then no sale shall be considered to have taken place and the decree shall be deemed void and of no effect; that said condition was never complied with but the property was sold to Munro, who was not a party to the proceeding, and therefore the decree by its terms became void. Petitioners obtained the basis for this argument by omitting from their brief certain words of this decree. The decree provided “that upon the failure of the said complainants or some of them or some other person to make such bid and pay said money, then no sale shall be considered to have taken place and this decree shall be deemed void.” Munro came within the provision for a bid by “some other person”, and therefore, if the complainants did not make the required bid, still the decree remained in force. But there is nothing to show that the complainants did not make such bid as the decree required of them. They may have made such bid and Munro may have overbid them. The subsequent confirmation of the sale is conclusive upon all persons bound by that decree that the terms of the decree were complied with.

It is argued that the decree only enjoined the sheriff from making sale under said alias execution on September 7,1903, and as that date was passed that injunction is no longer effective and does not prevent the sheriff from selling now. The language of the decree in that respect is “that the injunction granted in this case restraining and enjoining the sheriff of Lake county, Illinois, from making and holding any sale under, by virtue of and consequential upon, said redemption made by or in the name of H. Martin, on September 7, 1903, be and the same is hereby made perpetual.” The date September 7,1903, refers not to a date of sale but to the date of the redemption made by Novak in the name of Martin. If the preliminary injunction had restrained a sale under said execution on the particular day then fixed for that sale, this decree is broader and perpetually enjoins the sheriff from making any sale by virtue of the redemption made by Novak in the name of Martin, which was the redemption under the judgment and execution of the Illinois Brick Company.

It is argued that this decree is not binding upon the petitioners because they were not parties to that suit. The petition alleges that the title to the judgment and execution of the Illinois Brick Company was in Novak as trustee for the petitioners. Under the allegations of the petition this assignment to Novak could not have been earlier than September 7, 1903, and may have been later, as the petition only states that “thereafter” Martin executed and delivered to Novak an instrument whereby he assigned to Novak said judgment and all interest in said alias execution. It is not alleged that the complainants in Burnham v. Both had any notice that Novak was trustee for Luella Heinroth and for Tiedt or had any notice that they had any interest in the judgment or execution. There is no allegation that the assignment was recorded nor is any fact stated which would give the complainants in that bill notice that petitioners had any interest whatever in the subject-matter of that suit. In the absence of such notice complainants could not make them parties. It would be fatal to the validity of decrees in courts of equity in such matters if persons holding an unrecorded interest in some portion of the matter litigated could afterwards in this collateral manner avoid a decree rendered in a cause in which all the parties were brought in whose interests were disclosed. Novak, who had the title to the judgment and execution by the assignment and who was the trustee for petitioners, was a party to the suit and bound by the decree, and, according to that decree, was a party to the conspiracy and fraud which that decree sought to undo. We are of opinion that petitioners must be treated as present in that suit by their trustee, Novak, and therefore as bound by the decree. Vetterlein v. Barnes, 124 U. S. 169; Beals v. I. M. & T. R. R. Co., 133 U. S. 290, and authorities there cited.

Counsel for both parties have very naturally drifted outside of the record, and have discussed some facts which our opinion in Both v. Burnham, supra, shows were in evidence in the trial of that chancery cause, and among these facts is the circumstance that Luella Heinroth was a witness on the trial of that case and therefore knew of the pendency of that suit and if she desired to protect her interest she could have intervened, set up her secret rights and obtained an order giving her permission to defend. We deem it improper to consider anything outside the present record. But suppose that petitioners had there intervened or that complainants in that suit had had notice of their interest and had made them parties defendant as well as their trustee, Novak. Still under the facts found in that decree the use of Caroline Both’s judgment in the redemption sale for an amount far in excess of what remained due thereon and the subsequent fraudulent acts of Heinroth, Husak, Moore, Martin and Novak, would have required the setting aside of said sales and redemptions, and the fact that petitioners here might have innocently loaned some money to parties who wished to secure title to this real estate, upon an agreement that the subsequent certificates should be issued or assigned to them as their security could not have prevented the decree against them. Their relief must be sought against the parties to whom they loaned the money which was used in these fraudulent transactions.

We deem it unnecessary to consider the question whether there was sufficient service upon Hansen. The answer avers that Frost is the actual owner of the title. If so he has a right to protect it. But if the title is in Hansen, Frost warranted that title to him and has a right to resist this application for the purpose of protecting that title. But if these defendants had not been brought in, the sheriff had a right, and no doubt it was his duty, to set up in defense the decree which perpetually enjoined him from making a sale under this execution.

The judgment is affirmed.

Affirmed.