Mulvey v. Gibbons

87 Ill. 367

• Court: Illinois Supreme Court
• Decided: September 15, 1877
• Status: Published

Opinion

Mr. Justice Sheldon

delivered the opinion of the Court:

The records of Cook county having been destroyed by the great fire in Chicago in October, 1871, and the title papers, to a more or less extent, of the petitioner, she filed her petition in this case, under what is called the “Burnt Record” act, praying for a decree establishing and confirming the title she claimed to the land in question. The act provides that, in case of such destruction of records, any court in the county having chancery jurisdiction shall have power to inquire into the condition of any title to, or interest in, any land in the county, and to make all such orders, judgments and decrees as may be necessary to determine and establish such title or interest, legal or equitable, against all persons, known or unknown; and that it shall be competent to determine and decree in whom the title is vested, whether in the petitioner or in any other of the parties before the court. Various persons were made defendants, but the contest in the case is only between the petitioner, on the one side, and the defendants, Gibbons and the South Park commissioners, on the other, and the case will be considered only as regards them.

The whole question arises under the Embree mortgage, the defendants claiming under conveyance by the mortgagor, made subsequent to the giving of the mortgage, and the petitioner under conveyance from the mortgagee after the .mortgage was made.

Petitioner insists the equity of redemption has been barred by foreclosure, or, that if not so barred, it was not enforceable against her as a purchaser, and claiming under purchasers for value, and bona fide, by reason of laehes, neglect and abandonment on the part of the grantees and assigns of Embree, the mortgagor ; and that the true question in the case is, whether the equity of redemption could be enforced against the petitioner at the time the petition was filed. Defendants insist there has been no valid foreclosure, and, in that event, deny that the question is as petitioner claims, but that, whether the equity of redemption can be enforced against the petitioner, is a question only to be determined upon a bill for foreclosure subsequently to be filed; that, under the statute, the question of title only is to be determined in this proceeding; that the mortgagor holds the title until the equity of redemption is regularly foreclosed, and hence that the court rightly decreed that the title was vested in the lawful grantees and assigns of Jesse Embree, and not in the petitioner, leaving the question, whether the equity of redemption was enforceable, open, to be determined upon bill to be filed to foreclose the mortgage—the decree expressly saving that right.

We concur in the view of the petitioner, that the proper question is, whether the equity of redemption was enforceable against the petitioner at the time the petition was filed; for if not, then the title was in the petitioner.

Defendants’ position, as also the decree, would treat the case as one only to establish a lien by mortgage, and not as one to establish title. The statute, in terms, provides for two sorts of petition — one to establish title, the other to establish any lien by mortgage, etc. The petition, here, is to establish title; the respective parties claim title under conveyances purporting to convey title. The power of the court, under such petition, is, to inquire into the condition of any title to, or interest in, the land, and to make such decree as may be necessary to determine such title or interest, legal or equitable, against all persons, known or unknown. We think the court, here, might properly determine in which party was the title or interest in the land, whether legal or equitable.

Petitioner claims there have been, here, three valid foreclosures. One, by decree in the second foreclosure suit against Daniel and others, on bill for foreclosure filed April 25,1868. But that decree does not affect the defendants, because Tompkins, who then owned the equity of redemption—if it had not been previously foreclosed—was not made a party to the suit. It is claimed that he was a party under the designation of “ unknown persons,” as the complainant in that suit did not know that he had right in the land. This claim is entirely inadmissible. Tompkins wras a party to the first foreclosure suit, a well known resident of the county, and, because the party bringing the second foreclosure suit did not know that Tompkins’ rights were not cut off by the decree of foreclosure in that former case, the latter can not be treated as an unknown person in the second foreclosure suit. He does not fill the description of such person within the contemplation of the statute for making unknown persons parties.

Another foreclosure claimed, is under the power of sale in the mortgage. The objections taken to this foreclosure are, that the property was bid in at the sale indirectly for the mortgagee; and that the deed executed pursuant to the sale, was made in the name of the mortgagee, and not in the name of Embree, the mortgagor; the mortgage providing that upon the sale, the mortgagee might, as the attorney of the mortgagor, for that purpose by the mortgage duly authorized and appointed, execute and deliver to the purchaser a good and sufficient deed, etc. The first objection would render the sale voidable only at the option of the mortgagor, to be determined in apt time. But neither he nor his grantees have ever taken any steps to set aside the sale. It is claimed that Wiltberger, himself, sufficiently impeached the sale by his first bill of foreclosure, wherein he set forth these two matters as affecting the validity of the foreclosure under the power of sale. Such averment in that bill was but the statement of a legal conclusion, as supposed to result from the facts, and made for the purpose of that suit as an excuse and reason for applying for a chancery foreclosure. The subsequent voluntary dismissal of the suit, it is contended, amounted to a withdrawal of this allegation in the bill, and that it should be counted for naught. We do not regard this statement in the bill, of itself, exclusive of influence it might have on subsequent conduct, as having any greater effect than the admission of the fact that the property was bid in for the mortgagee. It is said, the same statement is repeated in the present petition. We do not so understand. The petition makes reference to that bill to foreclose, stating that therein, among other things, the complainant averred the invalidity, in the respects named, of the foreclosure under the power of sale; the petition only stating, by way of recital, the allegations of the bill to foreclose.

The mortgage gives the power, in default of payment, to sell the land and all right of redemption at public auction, and declares that the sale shall be a perpetual bar to the right and equity of redemption. The sale itself, duly made, would seem to be the principal thing, and the substantial foreclosure of the right to redeem; and however, in case of such a form of mortgage, the deed made in the name of the mortgagee, and not in the name and as the attorney of the mortgagor, may be regarded as not conveying a good title in fee simple to the purchaser, as seems to have been held in Speer v. Hadduck, 31 Ill. 439, in an action of ejectment, we must regard such a proceeding for foreclosure as not to be disregarded in its bearing upon the equities in this case.

The decree of strict foreclosure in the case of Wiltberger v. Embree et al, the first foreclosure suit, is mainly relied upon, as protecting the petitioner. Up to, and at the time of the institution of that suit, Wiltberger seems to have claimed and relied upon the foreclosure under the power of sale as a valid one. Mrs. Cleaver seems to have bought and paid for the land upon such reliance, though, at the time, it was thought advisable that a decree of strict foreclosure should be obtained, and probably the money ivas paid for the land under the expectation that such a decree would be procured.

Although Mrs. Cleaver, with reference to that foreclosure suit, bought pendente lite, and is, therefore, affected by the reversal of that decree, and she, herself, enjoys no protection from the decree, it is otherwise with her grantees, Mulvey and Bass. The decree of strict foreclosure was entered June 18, 1866.

The deed from Mrs. Cleaver and her husband was made to Mulvey and Bass, June 20, 1867. Ho step was taken toward reversing the decree until August 23, 1869, when the writ of scire facias to Wiltberger, defendant in error, was issued.

Although then the decree of foreclosure was reversed by judgment of this court on May 22, 1871, such reversal would in nowise affect the rights of Mulvey and Bass, as decided by this court in the cases of Wadhams v. Gay, 73 Ill. 415, and Eldridge v. Walker, 80 Ill. 270. They, having purchased while the decree of strict foreclosure was in full force, before any steps had been taken to reverse it, were entitled to put faith in and rely upon the decree as determining and binding the rights of the parties to the suit in the land. The case of the petitioner then claiming under Mulvey and Bass, or Mulvey alone, is to be considered as unaffected by the reversal, and as if the decree were now in full force.

Errors, if there be any in the decree, can not affect it collaterally, if there was jurisdiction.

There was full jurisdiction over Tompkins, under whom defendants claim,- and even as to his co-defendant Ashton— upon whom service was held bad and made a ground of reversal—the decree would be good collaterally, as the writ on which the service was held bad was returnable to the December term, 1865. His default was not entered until June 11, 1866, before which time several terms of court had elapsed, there being a new term of the Superior Court begun on the first Monday of each month. By order of court of June 11, 1866, it was found that due personal service of process of summons had been had on Ashton. There having been, then, time for another summons and for a valid service of the same, they will be presumed, in the case of such a finding. Miller v. Handy, 40 Ill. 449; Turner et al. v. Jenkins, 79 id. 228.

The objection to the decree for uncertainty as to the amount found due and to be paid, we would regard as no more than error in the decree were the objection founded in fact; but we consider the decree as reasonably certain in this respect— that the sum was $45,000. The decree in this regard being: “And it also appearing to the court that the said Embree has only paid a part of one of the notes due January 1, A. D. 1859, to-wit: the sum of $1103.40 thereon, and that said complainant has received no other money on account of said notes, and that there is now due and owing on the said notes, over and above the sum of $45,000 beside, the sum of $52,800, yet to mature, but which, as provided by said mortgage, has also to become due and payable, making a total of some $97.800.” —Then, afterward, follows the order to pay the amount then due and owing on the notes and mortgage.

The more serious objection taken to the decree is, that it was but a decree nisi, and that, in order to complete the decree as one of foreclosure, a further order of court was necessary, finding that the money had not been paid and making the foreclosure absolute.

The concluding portion of the decree was as follows:

“And it is also ordered, adjudged and decreed, that upon the defendants, or either of them, paying to complainant the amount now due and owing on said notes and mortgage, together with the costs of this suit, within thirty days from the entry of this decree, that then the complainant cancel and satisfy of record said mortgage, if thereto required by said defendants, or either of them) but in default of such payment by defendants, or either of them, within the time aforesaid, then it is ordered, adjudged and decreed that the defendants, and each of them, do stand absolutely debarred and foreclosed of and from all equity of redemption of, in and to the said premises included in said mortgage, and set forth and described in said bill of complaint,”—particularly describing them.

No further order or decree appears.

The rule in English practice, in this regard, is thus laid down in Daniell’.s Chancery Practice, vol. 2, (4th Am. ed.) p. 996, et seq.: “There are some cases of decrees which, although they are final in their nature, require the confirmation of a further order of the court before they can be acted upon. * * * The most ordinary case, in which a further order is necessary to complete the decree, is that of a decree for a foreclosure. * * * If, upon that occasion (the time appointed for payment) the defendant does not attend to pay the money, the plaintiff’s right to the estate will become absolute. He must, however, in order to complete his title, procure a final order for confirming it, otherwise the decree of foreclosure will not be pleadable.”

It is contended by petitioner’s counsel, that this rule of practice does not prevail in this State, and in the absence of any express decision of this court upon the point, he cites the case of Chickering v. Failes, 26 Ill. 507, as being in support of such view. The decree, there, was one of strict foreclosure. The form of the decree does not appear in the report of the case, but counsel set it forth at length as shown by the transcript of the record in that case, and it is a decree nisi, in form as in this case, with no subsequent order of confirmation appearing. This is not contradicted.

The decree of strict foreclosure, there, was held void for want of jurisdiction in the court to render it. It was there set up as color of title in bar of the right to redeem, the statute upon the question involved being, that on proof of the statutory requirements, the party claiming thereby “shall be held and adjudged to be the legal owner of the lands and tenements to the extent and according to the purport of his or her paper title.” The decree was held to be good color of title, and, accompanied with the other statutory requisites, to be sufficierit to bar the equity of redemption, because it purported to be a foreclosure of the mortgage. The answer made to this is, that the point now in question was not, in any way, raised or considered in that case. Without pronouncing as to the rule of practice in this State in the regard named, and for the present purpose admitting it to be as claimed by appellants, we deem the decree, as it is, in its bearing upon the equities in this case, as of sufficient avail to the petitioner.

At the date of the decree, and for a considerable time afterward, the property was worth very much less than the amount due of the mortgage debt.' The decree determined the rights of the parties, and decreed, that unless the amount due was paid within thirty days, the defendants should be debarred from all equity of redemption of the premises. There is no pretense of the payment of any part of the money, or of excuse for non-payment, or of any readiness or disposition to pay anything. Why, in reason and justice, should not the right of redemption be barred as the decree declared?

The absence of a further order of confirmation was here a lack of but the merest technical form. According to the rule as laid down by Daniell, if the defendants did not- pay the money the plaintiff’s right to the property became absolute, though in order to complete his title there must have been a final order confirming it.

If the plaintiff’s right to the property had become absolute, how, before a court of equity, could that consist with any remaining right of redemption in the defendants? Why, in that court, where the real right, regardless of form, is regarded and given effect to, should not such an absolute right, as thus declared, be recognized and asserted ?

In Kenyon v. Shreck, 52 Ill. 383, this court recognize and declare the principle that the right of a mortgagor or his grantees to redeem after condition broken is a purely equitable right, which can be asserted only in a court of equity, and when its assertion would be plainly inequitable, that court will withhold its aid; and that where a defective foreclosure has been had, such equity of redemption will not be permitted to be asserted against an equity still stronger. And see Hamilton v. Lubukee, 51 Ill. 420; Munn v. Burges, 70 id. 604; Bush v. Sherman, 80 id. 160.

The application of that doctrine to the facts of the present case, must determine it in favor of the petitioner. There were here repeated attempted, and, as was supposed, sufficient, foreclosures of the equity of redemption. The moneys secured by the mortgage were largely in default in payment, the property worth but a small part of the mortgage debt. For a long time before such attempted foreclosure, as well as thereafter, neither Embree, the mortgagor, nor any of the parties claiming under him, offered to make any payments on the mortgage, or paid any taxes, or gave the property any attention, and apparently abandoned the same, as Egbert Wiltberger testifies they did abandon it.

It appears that Embree had made contracts of sale with several different persons for small portions of the premises, and Wiltberger had arranged to release their parts from the mortgage, on making their payments; that in, or before, 1859, some small payments were made by these under-purchasers, which were applied on the mortgage, and some taxes on their portions were paid in that year, but that, subsequent to that year, they never paid anything or any taxes, although applied to and urged to do so by Wiltberger, he offering to release from the mortgage, on payment of a very much less amount than a proportionate part of the mortgage debt,—in one instance, on paying at the rate of $100 per acre. The abandonment was apparently entire, on the part of them all. Wiltberger and his grantees were allowed to deal with the property as their own, without objection. They paid the taxes, made a vacation of Yerber’s previous subdivision, made a new and differing subdivision themselves, with streets which were improved and traveled as highways.

The condition of the title was such, that repeated and numerous sales and conveyances were all the while being made for the full value of the land on the basis of a good title, it being believed to be such, and so pronounced, upon legal advice taken in some cases. All this occurred before the eyes of Tompkins, who resided in Chicago, under whom defendants claim, and to whom Embree conveyed the equity of redemption in 1859.

This neglect, inaction and omission to intimate any adverse claim, and apparent content with and acquiescence in the several foreclosures, encouraged purchasers to deal with and buy the land as they did.

This silence continued, and there was no stir of this asserted equity of redemption until after an extraordinary increase in the value of the property had occurred from the passage of the Park act, when, in May, 1869, Tompkins quitclaimed his interest in the premises in question to one Daniel H. Carpenter, for no consideration, so far as the proof shows; after which, the decree of foreclosure was taken to this court, on error, and reversed. Gibbons, to whom Carpenter subsequently conveyed, does not appear to have paid any consideration. The South Park commissioners, who purchased from Gibbons, appear to have paid a valuable consideration, but they must be held to have had notice of the prior equity of the petitioner.

Viewing the equities between the parties, the petitioner appears to have the better right. The equity of redemption set up by the defendants should be regarded, we think, as not enforceable against the petitioner at the time the petition was filed, and, consequently, as barred; and if so, it confirms the title in the mortgagee, and those claiming under him, making the title conveyed by the mortgage deed—which was conditional so long as the equity of redemption might be asserted— now absolute.

We are of opinion that, under the proceeding here adopted, the court below should have determined and decreed that the title in the land in question was vested in the petitioner.

The decree will be reversed, and the cause remanded for further proceedings.

Decree reversed.