Karr v. Peacock

137 Ill. 367

• Court: Illinois Supreme Court
• Decided: May 9, 1891
• Status: Published

Opinion

Mr. Chief Justice

Scholfield delivered the opinion of the Court:

No question arises on this record between appellee and Andrew or Amy J. Donnan. So far as here appears, the redemption and sale, and sheriff’s deed pursuant thereto, of the land ■in controversy, to appellee, Peacock, vest in him a complete ¡title, both legal and equitable, unless prior to the time of that sale the equitable as well as the legal title to the land was in appellant, Karr, by virtue of the prior sheriff’s deed to him; and it may be admitted that he had the prior legal title, the only question being, whether, under the facts in evidence, he .is not to be regarded as, in equity, holding that title in trust for appellee, Peacock.

The agreement between appellant and Amy J. Donnan only ■obligated him to convey to her the land therein described, not including that here in controversy, and on the other hand, it only required her to pay to him “the total amount of money paid out and expended by him in redeeming and repurchasing” the land therein described, and for taxes, etc. But Peacock paid to him not only the sum thus required to be paid, but the entire amount which he had paid in redeeming from the -sale of the Lumbermen’s and Mechanics’ Insurance Company, together with interest thereon, which includes the amount he paid to redeem the property in dispute from that sale. He has thus received every cent that it would have been necessary to have paid him to redeem this property from that sale had the attempt to redeem been made in apt time, and it is not ■ equitable that he shall retain both the redemption money and the property. It is true that he could not have been compelled to accept the redemption money, because the payment was made too late; but by accepting it he waived his-rights in that respect, and must be treated, in equity, as holding the legal title in trust for the equitable owner. It is of no consequence that there is no privity between Andrew Donnan and the party paying- the money. It is unimportant to appellant what rights Peacock acquires by the payment, since by accepting the payment his lien on Andrew Donnan’s land is, in equity, extinguished, and removed out of the way. Borders v. Murphy, 78 Ill. 81; Clingman et al. v. Hopkie, id. 152; Meyer v. Mintonye, 106 id. 414; Pearson v. Pearson, 131 id. 464.

We find no error in the decree, and it is therefore affirmed..

Decree affirmed.