text:
    Simon Fitch v. J. Otis Wetherbee et al.

      Filed at Springfield January 19, 1884.

    1. Receiver—what title passes to a receiver. Where a land company, prior to the appointment of a receiver of its lands, had conveyed the same by deed of trust, to secure holders of its guaranteed and preferred stock, and the company’s equity of redemption in the same lands had, before the filing of the bill in -which the receiver was appointed, been sold on execution, and the time of redemption passed, it was held, that the receiver took nothing by the decree under which he was appointed, or by a conveyance from the company itself, and hence could pass no title by a sale made by him of such lands in pursuance of the directions of the decree.
    2. Judioiaii sake — redemption—purchaser at judicial sale—talcing subject to right of redemption. A purchaser at a judicial sale of land buys subject to the statutory right of redemption by the defendant, his heirs, administrators or assigns, or any person interested in the property through or under the defendant, within twelve months, and by any decree or judgment creditor, his executors, administrators or assigns, after twelve and within fifteen months.
    3. Same—effect of a decree, as depriving a person of the statutory right of redemption. The right given by statute to a decree or judgment creditor to redeem, is not affected by a failure of the court to provide in its decree for the sale of real estate, for the privilege of redemption. That right is given by the statute, and not by the decree of the court. In a case where the statute authorizes a redemption from the sale, a clause in a decree declaring that the sale shall be made absolute, will not bar that right. That part of the decree will be regarded as inoperative, and a redemption allowed as in other cases. And it makes no difference whether the sale is made by an officer of the law, or by one appointed by the court to perform that duty.
    4. Same—purchaser of equity of redemption at execution sale—necessity of redeeming from the superior lien. A sale and sheriff’s deed under a judgment which is a junior lien on the land of the debtor to that of a deed of trust, pass only the debtor’s interest therein,—the equity of redemption; and such purchaser taking no rights superior to those of his debtor, must redeem from a subsequent sale made under a decree of foreclosure of the trust deed, within twelve months from the date of that sale, or he will, under the statute, be barred, and his title as the holder of the equity of redemption will be defeated.

      5. After the execution, and recording of deeds of trust by a debtor to secure payment of certain obligations, a judgment was recovered against him, upon which an execution was issued and levied upon the same lands embraced in the trust deeds, and a sale of them made to the plaintiff in the judgment. On bill filed by the person secured by the trust deed, to foreclose, in which the judgment’ creditor was made a party, a decree was rendered finding that his equities in the premises were subordinate to the equities and rights of the complainants, and ordering the trustee to sell the lands. A sale was made under the decree, and no redemption having been made from the sheriff’s sale, a deed was made to the assignee of the certificate of purchase, the date of the assignment thereof not appearing, no redemption having been made from the trustee’s sale under the decree: Held, that the grantee in the sheriff’s deed had no title to convey, it being cut off and defeated by his failure to redeem from the trustee’s sale.
    6. Same—redemption by judgment creditor—when the right exists. Where, before a foreclosure sale, the equity of redemption of the mortgagor has been sold on execution against him, and the period of redemption by him passed, so that he has no interest remaining, a creditor having a judgment or decree against him may redeem from the foreclosure sale.
    7. After sale on execution in favor of a bank, of the debtor’s equity of redemption in land, a bill was filed by other creditors to enforce and foreclose two deeds of trust on the same real estate, which were prior liens, making the purchaser under the execution, but not the assignee.of the certificate of purchase, a party, in which a decree was rendered holding the trust deeds the prior lien, and ordering a sale. The sale was made, and the assignee failing to redeem from the same, a judgment creditor redeemed from the sale under the decree: Held, that the failure to make the assignee a party to the bill could not affect the right of the judgment creditor to make his redemption from the sale under the decree, if any was allowable in such case.
    8. Same—who is a judgment creditor that may redeem. The decree or judgment creditor having the right to redeem, under the statute, from a judicial sale, is a decree or judgment creditor of the mortgagor or judgment debtor whose property has been sold and is the subject of' contention among his creditors. The statute does not embrace a judgment creditor of every person who may have been made a defendant to a foreclosure, as having some interest in the mortgaged premises.
    9. Same—who may object to a redemption by a judgment creditor. After the right of the holder of the equity of redemption in land is cut off by a foreclosure sale, he can not be heard to dispute the right of another judgment creditor to redeem from the foreclosure sale, as he has no interest to be affected. The only person who can object, if any one can, to a redemption by a junior decree or judgment creditor, is the purchaser at the sale redeemed from, or his assignee.

      10. Same—redemption from sales under trust deeds prior to the recent statute—effect of sale under decree of foreclosure. Under a deed of trust containing a power of sale given before the recent law on the subject took effect, a sale made by a trustee appointed by the court to execute the trust, is not subject to redemption, either by the mortgagor or a judgment creditor.
    11. But where the party secured files a bill to foreclose the same, and a decree is entered having all the elements and features of a common decree of foreclosure, as, when it finds the rights of the parties, and specifically directs the party who is to make the sale as to the notice to be given, the manner of the sale, and how to distribute the proceeds of the sale, and requires him to report his acts to the court for its approval, relieving the trustees from acting, except the one so appointed to carry the decree into execution, a sale made under such circumstances will not be regarded as made under the power in the deed, but as under a decree for the payment of money, and the right to redeem from such sale will exist the same as in the case of the foreclosure of an ordinary mortgage having no power of sale, and in such case it is not material that the person appointed to sell is named trustee or “active trustee. ”
    12. Mortgages—what amounts to a mortgage. Any conveyance of an estate to secure a debt or the performance of some act, such as the payment of money or the furnishing of indemnity, subject to be defeated by the performance of the act agreed to be done, is a mortgage.
    13. Deeds of trust by a corporation upon its lands, to trustees, to secure the performance of an undertaking of the company to pay dividends, or interest, on guaranteed and preferred stock issued and sold, and ultimately to pay for the stock itself, are in the strictest sense mortgages.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Messrs. H. S. & F. S. Osborne, for the appellant:
    The title under the redemption, if good, relates hack to the title under the foreclosure sale, and takes priority over the sheriff’s deed under the Everett National Bank sale. McRoberts v. Conover, 71 Ill. 524; McLagan v. Brown, 11 id. 519; Moore v. Hopkins, 93 id. 505; Lamb v. Richards, 43 id. 312; Sweezy v. Chandler, 11 id. 445; Karnes v. Lloyd, 52 id. 113; Lloyd v. Karnes, 45 id. 61.
    The trust deecjs were mortgages, within the meaning of the statute concerning redemption. As to what is a mortgage, see 1 Washburn on Real Prop. chap. 16, sec. 1; 2 Story’s Eq. Jur. sec. 1018.
    Assuming the trust deeds were mortgages, then the decree was essentially a decree of foreclosure, and the sale was made by virtue of the decree,—not under the power contained in the deeds. What constitutes a foreclosure is laid down in 2 Jones on Mortgages, sec. 1538, and 2 Hilliard on Mortgages, sec. 1.
    The right of redemption is given by statute, and can not be taken away by a decree of court. (De Wolf v. Haydn, 24 Ill. 530.) The decree will be construed and given effect in harmony with this right. Chesnut v. Marsh, 12 Ill. 177; Shriver’s Lessee v. Lynn, 2 How. 43; Bigelow v. Forest, 9 Wall. 339. The law relating to redemption gives to the mortgagor and to the judgment creditor an equitable estate in the premises. Bronson v. Kinzie, 1 How. 311; Brine v. Hartford Ins. Co. 96 U. S. 638.
    Mr. George W. Smith, for the appellees:
    The bill was essentially a bill to enforce the execution of a trust,—not for the foreclosure of a mortgage. Coal and Mining Co. v. Edwards, 103 Ill. 472.
    Nor was the decree a decree of foreclosure. It directed, first, a sale by the “active trustee, ” or in effect commanded that the trust be executed; and second, that a receiver be appointed, and that he sell the property of the corporation.
    Neither the sale by the “active trustee,” nor by the receiver, was a sale by virtue of a decree, of “foreclosure of mortgage, or enforcement of mechanic’s lien or vendor’s lien, or for the payment of money; ” nor did either sale come within the statute concerning redemption. Rice v. Brown, 77 Ill. 549; Wilkins v. Gordon, 11 Leigh, (Va.) 547; Crenshaw v. Siegfried, 24 Gratt. (Va.) 272; Swift v. Smith, 102 U. S. 450; Rev. Stat. title “Judgments,” sec. 16; Rev. Stat. title “Corporations,” sec. 25.

      Rejecting that part of the decree which declared that the sale should he absolute, it was still a decree, not of foreclosure, but to close a trust.
    The case made is not within the principle of Suitterlin v. Connecticut Mutual Life Ins. Co. 90 Ill. 483.
    In any event, the redemption and sale thereunder were incomplete. The deposit was insufficient. It should have been $1201, and interest at ten per cent, making $1351.12, instead of $1210,—or at least $1100 and $137.50, making $1237.50.
    The act of 1879, fixing eight per cent as the rate to be paid, was not available for the redemption in question. The right of redemption, as it exists at the time, enters into the contract and binds the parties. The right to redeem involves the coordinate right to require what the law prescribes. Bronson v. Kinzie, 1 How. 311; Van Hoffman v. Quincy, 4 Wall. 535; Gunn v. Barry, 15 id. 610; Brine v. Hartford, Ins. Co. 96 U. S. 627.
    Messrs. Dexter, Herrick & Allen, solicitors for the Chicago, Burlington and Quincy Railroad Company:
    We concede that to entitle a judgment creditor to redeem, it is not necessary that he should have a lien. The following authorities establish that rule: McRoberts v. Conover,

    71 Ill. 529; McLagan v. Brown, 11 id. 519; Moore v. Hopkins, 93 id. 505; Lamb v. Richards, 42 id. 312; Sweezy v. Chandler, 11 id. 445; Karnes v. Lloyd, 52 id. 113; Lloyd v. Karnes, 45 id. 61.
    But here, the question is not whether a judgment creditor, who would otherwise be entitled to redeem, must have a lien, but, whose judgment creditors have such right of redemption. It is clear that the judgment creditors of every person will not have the right of redemption. There must be some limitation as to the particular judgment creditors who are entitled to redeem. The provision of the statute is: “If such redemption” (the redemption provided for in the preceding sections) “is not made, any decree or judgment creditor, etc., may, after the expiration of twelve months, and within fifteen months, after the sale, redeem the premises,” etc. Whose judgment creditors are meant by this section ? Not the judgment creditors of all the world, but clearly only the judgment creditors of those who had a right to redeem, under the preceding sections, and whose right of redemption the law provides shall attach in favor of their judgment creditors, at the expiration of the twelve months.
    We contend that the true construction of section 18 is, that only those persons who have, at the time of the sale, some interest in the property sold, can have any right to redeem from the sale. A right to redeem implies some interest to be redeemed, and it would be an anomaly in law to vest a right of redemption in a party having nothing to redeem.
   Mr. Justice Scott

delivered the opinion of the Court:

This was a petition brought by J. Otis Wetherbee and Franklin E. Gregory, under what is known as the “Burnt Records act, ” to have established and confirmed in them the title to a tract of land described in the petition. The only person named as defendant who makes any defence, is Simon Fitch. On the hearing the Superior Court found petitioners were vested with the title to the property, and so decreed. Defendant brings the case to this court, on appeal.

Both parties claim the title to the premises that was originally in the Cook County Land Company. Concerning thq principal facts there is no disagreement, and they may be shortly stated. On the 9th day of March, 1875, the Cook County Land Company, by its deed of that date, conveyed the premises in question, with other property, to Robert C. Wright, J. Irving Pearce, and William C. Tibbetts, in trust, for the purposes therein named. It was-recited in the deed the company was about to issue shares of stock, amounting to $150,000, the certificates of which should bear a guaranty to the effect such shares would receive a dividend of eight per cent, to be paid semi-annually, and that the property was conveyed in trust to secure the performance of the agreement of the company in that behalf. It was further provided the trustees therein named might, at any time, on the application of the holders of the stock, or at their own discretion, upon notice given, sell and convey any part of the lands described in the deed, in the performance of the trust. One of the trustees named in this deed refused to act, and the trusts devolved on the other two.

Afterwards, on the 13th day of May, 1876, the company, by its deed of that date, conveyed the property in controversy that was embraced in its former deed, except a strip of one hundred feet in width, together with other property, to the same trustees that had assumed the burden of the trusts created by its former deed, and one Charles A. Gregory. This latter conveyance, like the former one, was in trust, the purposes being definitely declared in the deed itself. It contained a recital the land company was about to sell preferred stock to a very large amount, the certificates of which should be indorsed the company would pay the holder a certain sum, semi-annually, in full of all dividends or interest on such shares, and that such' stock should be what was denominated “preferred stock. ” Among other conditions written in the deed, was one the trustees might sell, convey or incumber any of the property for any purpose not inconsistent with the trust, and it was provided one of the trustees, to be styled “active trustee, ” might be designated by them to act for all, and that Charles A. Gregory should be the “active trustee” in the first instance, and that conveyances and releases of land made by him should be as effective and valid as if made by all such trustees. This deed did not provide for notice in case of sales under- its provisions. Both of these deeds were recorded in the county where the land is situated, soon after the date of their execution.

Subsequently to the recording of these trust deeds, the Everett National Bank of Boston recovered a judgment against the Cook County Land Company, the grantor in the deeds of trust, in quite a large sum. The date of the judgment is May 9, 1877. Upon an execution issued on this judgment, the property in question was levied upon and sold, and was bid in by the bank, to which the usual certificate of purchase was issued. After this sale, and before the time for redemption had expired, two bills were filed in the Superior Court by the holders of the preferred and guaranteed stock of the land company, to enforce and make effective the security afforded by the trust deeds. The defendants to these bills were the land company, all the trustees named in both deeds, and the Everett National Bank. Both bills are similar in form and in substance,—one having reference to the trust deed of March, 1875, and the other to the deed of May, 1876. The prayer of the latter bill is, that a receiver be appointed, according to the practice of the court, to take charge of the property described in the trust deeds; that the trustees therein named be removed, and some proper person appointed in their place; that complainants, according to the amount of their respective claims, may be decreed holders of such certificates of stock, and creditors of the Cook County Land Company, and entitled to payment; that the deeds of trust may be declared security for the payment of complainants’ claims, as against the Cook County Land Company, the common stockholders, and all of the creditors of the land company whose liens have been acquired at a date subsequent to the day of the recording of the deeds of trust; that the Cook County Land Company, and judgment creditors, if any, may be decreed to pay to complainants the amount of their respeetivé claims, on a day to be appointed by the court, and in default thereof the lands and premises described in the deed of trust may be sold under the direction and according to the practice of the court, and that the proceeds of such sales be applied to the payment of complainants’ claims, and that the land company be restrained from disposing of any of the property except under the directions of the court. The cases were consolidated, by consent, with the leave of the court, and a decree was thereafter rendered in the consolidated cause. On the hearing, the court fpund the principal facts as they are alleged in the bills, and found specifically, among other things, the rights of the Everett National Bank were subordinate to those of the holders of preferred and guaranteed stock secured by the trust deeds,—the deeds having been made and recorded prior to the recovery of the judgment,—and also found the amount of the outstanding guaranteed and preferred stock, and the respective holders of the same, and that a sale under the first trust deed is unnecessary, and thereupon decreed that Wright’s declination as trustee under the first deed be accepted; that Pearce and Tibbetts be excused and relieved from acting as trustees, and that all their rights, duties and powers shall be devolved upon and be vested in Charles A. Gregory, as active trustee, (so called,) and that said trusts be forthwith “closed and determined.” The court further decreed that no sale be made under the trust deed of March, 1875, but that Charles A. Gregory, as active trustee, do at once, and within ten days from the entry of the decree, proceed to sell the property, and made provision as to giving notice of the time and place of sale, as is usually done in cases of foreclosure. The court further decreed the sale to be made by Gregory should be absolute; that he execute and deliver to the purchasers deeds for the property sold, and then pay the proceeds arising from such sales, first, to the guaranteed stockholders, as their rights were found by the court, in its decree, to be under the first deed of trust, and then distribute the remainder of such proceeds, after paying certain costs and expenses, between the holders of the preferred shares, or their solicitors, as in the schedule in the decree mentioned, ratably, according to the amounts held by each; and if the sum realized from the sale of the property should be more than sufficient to pay the par value of the preferred shares, the same should be paid to the receiver. The court appointed Franklin H. Watriss receiver, and directed him to make a sale of the property, in the same manner as Gregory was directed to do. Pursuant to that decree, the property in question, with other property of the land company, was sold on the 13th day of December, 1879, both by Gregory and the receiver, and the same was purchased by Bullens and Wetherbee, who received deeds -for the same, in accordance with the directions given in the decree. By mesne conveyances, whatever title the purchasers at those sales acquired by their purchase came to and was vested in petitioners. Pending these proceedings in the Superior Court, the sheriff’s certificate of sale to the Everett National Bank having been assigned to Franklin E. Gregory, a deed upon it was executed by the sheriff and delivered to him. The record does not show when the certificate of purchase was in fact assigned by the bank to Gregory. It simply appears it was assigned to him, and that fact only appears from the recitals in the sheriff’s deed. Whatever title to the property Gregory obtained through the sheriff’s deed to him, by mesne conveyances also came to petitioners. It is the title thus acquired from these two sources petitioners insist is paramount, and should prevail.

On the 6th day of October, 1880, defendant, Fitch, obtained a money decree in the United States Circuit Court, against the Cook County Land Company, on which an execution issued, as upon a judgment at law. The first execution issued on the decree seems to have been returned unsatisfied. An alias execution issued on the 10th day of March, 1881, and was levied on the land in controversy by the marshal having the execution. On the same day Fitch deposited with the marshal a sum thought to be sufficient to redeem the property from the sale made by Gregory under the decree of the Superior Court, and the marshal issued the usual certificate of redemption as in cases of redemption by a judgment creditor under the statute. A misdescription of the premises seems to have been made by the marshal in entering the levy upon the execution, or otherwise, but the error was afterwards corrected by leave of the court out of which the execution issued. Under the redemption and levy the property was sold to Fitch at the marshal’s sale, and not having been redeemed by any one having authority to make a redemption, a deed was made to him, under the direction and by the order of the court. It is the title to the property so acquired that Fitch insists is the better title, and under which he claims the property in fee.

Before entering upon the discussion of what is thought to be the material question arising on the record, it may be proper to dispose of some matters of less importance, and that do not seriously affect the merits of the case. It will be noticed the Superior Court, by its decree, directed the receiver it had appointed, to sell the property in like manner as Gregory was directed to sell it. That, it is apprehended, did not in any manner strengthen the title petitioners ask to have established in them. There was no title in the receiver that he could sell. The land company had, long before the appointment of the receiver, conveyed the premises to trustees, to secure the holders of guaranteed and preferred stock, and the equity of redemption that remained in the land company had been previously sold on execution under the Everett National Bank judgment, and the time for redemption from that sale had expired by limitation, so that the receiver took nothing by the conveyance to him from the land company under the order of the court, or under the decree itself, that he could sell. The sale made by the receiver was a useless proceeding.

Nor is it perceived how the title petitioners claim is at all aided by purchasing the title Franklin E. Gregory is supposed to have acquired under the execution in favor of the Everett National Bank. The bank was made a defendant to the bills in the Superior Court filed by the holders of the preferred and guaranteed stock, and which was secured by the trust deeds. It answered setting up its rights in the property acquired under the execution sale, but it'was decreed its equities in the premises were subordinate to those of complainants. It did not appear from anything in the record, or otherwise, that Gregory was the assignee of the certificate of purchase issued to the bank at any time before the filing of either bill on which the decree of sale was rendered. Unless that fact did appear in some wajq it could not be said that he was a necessary party to that proceeding. It is sufficient the bank—the judgment creditor—was made defendant. It follows, therefore, the title of Gregory under the sheriff’s deed was defeated and cut off by his failure to redeem from the sale made by Charles A. Gregory under the decree of the court, within twelve months from the date of such sale. All he acquired was the equity of redemption that was in the land company, and his right to redeem would be and was barred by the statute, in the same manner and within the same period as would be the right of the land company itself. McRoberts v. Conover, 71 Ill. 524, is conclusive of this view of the case.

But if the assignee of the bank ivas a necessary party, as the holder of its certificate of purchase, it is not perceived how that fact would affect the questions discussed in' this opinion. The utmost that could be said would be that his right of redemption, if any existed, from the sale under the decree, was not barred or cut off by a proceeding to which he was not a party. But certainly the error in that respect, if it was an error, could not affect the right of any judgment or decree creditor to redeem from the sale under the decree of the court, if it were a sale where a redemption is permitted by law.

Another question has been very elaborately discussed. It is, can the judgment creditor of a mortgagor who has conveyed his equity of redemption before the foreclosure sale, and has therefore no interest in the title foreclosed, redeem from such sale ? This exact question does not arise on the record being considered, but one having a close affinity to it may be said to be involved. Here, the land company was the mortgagor of the lands in litigation. That company never conveyed its equity of redemption to any one. It is true its equity of redemption was sold on an execution issued on a judgment in favor of the Everett bank and against the land company, which judgment was a subsequent lien to the trust deeds; but the time for redemption which the defendant had under the statute had not expired when the bill which is alleged to be a bill to foreclose the trust deeds, was filed in this case. Before any sale of the property embraced in the trust deeds was made, the time for redemption from the sale under the Everett bank judgment had, however, expired, and the purchaser, or the assignee of the purchaser, had obtained a sheriff’s deed to the property. The question, then, that arises, is, can a decree or judgment creditor of the land company redeem from the foreclosure sale, if, in fact, it was a foreclosure sale.

It may be well to inquire what interest, if any, the holder of the equity of redemption had in the property that would give him any standing in court that would enable him to object to a redemption by a junior decree or judgment creditor of the land company. Obviously, none at all. His rights, whatever they might be, would have been cut off by the sale under the trust deeds or the decree of the court, whichever it was, after the expiration of twelve months from the date of sale. At most, the purchaser at the sale under the Everett bank judgment acquired nothing but the equity of redemption that was in the land company. The right of the land company would have been cut off in twelve months, and the rights of the holder of its equity of redemption would be barred in the same time. It follows that before the decree or judgment creditor undertook to redeem the property from the foreclosure sale, the holder of the equity of redemption had no interest whatever in the property. His rights had been barred or cut off by the foreclosure sale, and he can not be heard to complain of that which could by no possibility affect him. It seems clear the only person that could object, if any one could, to a redemption by a junior decree or judgment creditor in this case, would be the purchaser at the foreclosure sale, or his assignee. The right of such parties to object to the redemption made will now be briefly considered. So far as the point now being considered is concerned, it will be assumed the sale from which the redemption was attempted was a foreclosure sale. Whether it was such a sale will be considered further on.

A purchaser at a judicial sale buys the property subject to the statutory right of redemption. It is provided in the statute two classes of persons may redeem real property sold at a judicial sale,—first, any defendant, his heirs, administrators or assigns, or any person interested in the property through or under the defendant, may, within twelve months from the date of the sale, redeem real property sold on execution or decree of court; and second, “any decree or judgment creditor, ” his executors, administrators or assigns, after twelve months, and before the expiration of fifteen months, may redeem real property sold on execution or decretal order. In this case, no one belonging to the first class having redeemed the property sold, one of the second class is attempting to redeem under the provisions of the statute. The question that arises is, who is meant by “any decree or judgment creditor” that may redeem?—who is he creditor of? Primarily, it must be “any decree or judgment creditor” of the mortgagor or the judgment debtor whose property is the subject of contention among his creditors. In a case like the one being considered, it includes any decree or judgment creditor of the mortgagor. It is certainly not meant to include a judgment creditor of any person who may have been made a defendant to a foreclosure proceeding, as having some interest in the mortgaged premises. The statute is not that broad. Whether a judgment creditor of an assignee or purchaser of the equity of redemption is one of the class of persons that may redeem when the original debtor, or any one interested in the property through or under him, fails to redeem within twelve months, is a question that need not now be considered, as it can not arise in this case. Whoever else may redeem in such cases, it hardly admits of a douht the judgment creditor of the mortgagor is one of the persons that may redeem under the provisions of the statute.

Plainly, then, any decree or judgment creditor of the mortgagor may redeem from the mortgage sale, where no one having a right to redeem the property within twelve months from the date of the sale elects to exercise that privilege. And it makes no difference whether the mortgagor had conveyed his equity of redemption, or whether it had been sold on execution, before the foreclosure sale. The previous decisions of this court accord with this construction of the statute. In McRoberts v. Conover, 71 Ill. 525, this precise question was involved and was decided. Before the foreclosure sale the. equity of redemption of the mortgagor had been sold on an execution against him, and yet a judgment creditor of the mortgagor was permitted to redeem the property from the mortgage sale after the failure of the mortgagor, or the purchaser of his equity of redemption, to redeem within twelve months from the date of the sale. It was ruled, in that case, where a party purchases real estate at sheriff’s sale, under execution, upon which there was a mortgage, executed by the judgment debtor prior to the judgment upon ivhich the execution Avas issued, and obtains a deed from the sheriff upon such sale, all he acquires by virtue of such deed is the equity of redemption of the judgment debtor or mortgagor, and that he must exercise his right to redeem, thus acquired, within twelve months from the date of the mortgage sale, and if he fails to do so, a judgment creditor of the mortgagor may rightfully redeem at any time after the expiration of twelve months, and before fifteen months, from the date of the sale, and subject the land to sale under execution upon his judgment. The case of Moore v. Hopkins, 93 Ill. 505, declares the same doctrine. It was there held, that where the assignee of the equity of redemption, who stood in the shoes of the judgment debtor, with the same rights, but no others, to redeem the property from the execution sale, failed to make any redemption within twelve months from the date of the sale, he would be forever barred that privilege ; and any judgment creditor of the former owner of the property sold, by electing to do so within three months after the expiration of twelve months, could redeem the property from the former execution sale, on the conditions and terms provided in the statute. These cases would seem to be conclusive of the same point in the case being considered.

This construction can work no hardship to any one. As has been seen, the interests of the holder of the equity of redemption, whether it was acquired by voluntary conveyance or at execution sale, are barred and forever cut off by the decree before any decree or judgment creditor can make any redemption of the property, and of course he has no just ground of complaint. So far as he is concerned, it is an abandonment of his purchase of the equity of redemption, leaving the property to the creditors of the mortgagor or former owner, and the policy of the law is to make the property of the failing debtor pay as much as possible of his indebtedness. As respects the purchaser at the foreclosure sale, he stands in no position to object to a redemption of the property on grounds of hardship, or for any other reason. In making his bid, the law charges him with notice the property is subject to redemption by one of the two classes of persons mentioned in the statute as having that right. In this case the purchaser is chargeable with notice that, under the law, the land sold to him was subject to redemption after twelve months, and before the expiration of fifteen months, from the date of the sale, by any decree or judgment creditor of the mortgagor; and where a party having a right to do so, under the statute, elects to exercise his privilege to redeem the property from the prior sale, the purchaser will not be heard to object. But aside from all questions of hardship or the ¡lolicy of the law, the legislature has plainly declared that any “decree or judgment creditor” of the mortgagor may redeem the premises from the foreclosure sale after twelve months, and before the expiration of fifteen months, from the date of the sale, and this court has neither the right nor inclination, by judicial construction, to abridge that statutory privilege.

Coming now to the consideration of what is regarded as the most material question in the case, it is whether the sale made by Gregory, under the decree of the Superior Court, was one from which a decree or judgment creditor might redeem the property sold, under the provisions of the statute that provides for redemption in certain cases. Conceding it is such a sale, the redemption made by defendant, Fitch, on his execution against the decree debtor, was valid, and' his would be the better title; but if it were not such a sale, then petitioner’s title was in nowise affected by the attempted redemption. A brief reference to the statute in respect to judicial sales from which a redemption is allowed by the debtor, or by a decree or judgment creditor, may be of service in the further consideration of the case. Section 16, chapter 77, of the Revised Statutes of 1874, provides that “where any real estate is sold by virtue of an execution, judgment, or decree of foreclosure of mortgage, or enforcement of mechanic’s lien or vendor’s lien, or for the payment of money, ” it shall be the duty of the officer making the sale, instead of executing a deed for the premises sold, to give the purchaser a certificate describing the premises, showing the amount bid therefor, and when the purchaser will be entitled to a deed, unless the premises shall be redeemed. Another section of the same act requires the certificate shall be recorded in the office of the recorder in the county where the land sold is situated. Section 18 provides the defendant, his heirs, administrators or assigns, or any person interested in the premises through or under the defendant, may, within twelve months from the date of the sale, redeem the real estate sold, and prescribes the terms on which such redemption may be made; and by section 20 it is declared, if such redemption is not made, then “any decree or judgment creditor, his executors, administrators or assigns, may, after the expiration of twelve months, and within fifteen months, after the sale, redeem the premises, ” in the manner in that section provided. The right of redemption given by the statute to a decree or judgment creditor is not affected by a failure of the court to provide in its decree for the sale of real estate, with the privilege of redemption. It is the statute that gives the right of redemption, and not the decree of the court. In a case where the statute authorizes a redemption from a sale, a clause in the decree ordering the sale that declares the sale shall be absolute, will not bar that right. That portion of the decree will be regarded as inoperative, and a redemption will be allowed as in other cases. Nor does it make any difference whether the sale was conducted by an officer of the law or by one appointed by the court to perform that special duty.

Another inquiry that will aid in the further investigation is, whether the deeds of March, 1875, and May, 1876, and mentioned in the bills in the consolidated cause, are mortgages, or deeds °of trust in the nature of mortgages, as those terms are used in the law. Without seeking for any general definition of a mortgage, it is sufficient for the present discussion to say that a mortgage is any conveyance of an estate to secure a debt, or the performance of some act, such as, the payment of money, or the furnishing of indemnity, subject to be defeated by the performance of the act agreed to be done. The deeds of March, 1875, and May, 1876, are in the nature of mortgages, and come within ’this definition. It certainly appears they were given to secure the performance of the undertaking of the land company to pay the dividends or interest semi-annually on the guaranteed and preferred stock, and ultimately to pay for the stock itself. In the strictest sense that was to secure the payment of money, and makes both deeds mortgages.

It will be observed both deeds contain what is called a “power of sale” in the trustees therein named, and the contention on this branch of the case is, the sale was made by the trustee appointed by the court, under a power contained in the deeds, and not under the decree of the court for a foreclosure of the trust deeds, or, what would be the same thing, a decree for the payment of money. Undoubtedly, where the sale is made under a power it would be absolute, but if made under a decree of foreclosure, or for the payment of money, by an officer of the law, or by a person appointed by the court to perform that special duty, then the right of redemption would exist under the statute in favor of any one to whom the privilege is secured. The rule on this subject may be readily ascertained, but the difficulty lies in determining when it is applicable to a particular case. Admitting, as is freely done, the case being considered is not without difficulty in this respect, it may be said the sale made by Gregory has more features like a sale under a decree of court than under a power. If the decree is not a foreclosure or for the payment of money, it would be quite difficult to define it, or to ascertain for what purpose complainants come into court. No complaint was made the trustees excused or relieved from acting were incapacitated, or had refused to perform the trusts created by the deeds, or were unwilling to act with the trustee appointed by the decree. The prayer of the bills indicates the relief sought was for a decree in the nature of a foreclosure, for the payment of money. It will be seen complainants, by their bills, asked for a decree that the deeds of trust be declared security for the payment of their claims as against the land company, the common stockholders, and all judgment creditors of the land company whose liens had been acquired at a date subsequent to the day of the recording of the trust deeds; that the land company and such judgment creditors, if any, be decreed to pay complainants the amount of their claims on a day to be appointed by the court, and in default thereof that the lands and premises embraced in the trust deeds may be sold under the direction and according to the practice of the court, and the proceeds applied to the payment of the claims of complainants against the land company. This, it will be noticed, is the usual formula of a bill in chancery to foreclose a mortgage, or trust deed in the nature of a mortgage. It is true complainants asked to have the trustees removed, and some suitable person appointed in their place, but that was not done with a view to have such new trustee execute the power in the trust deeds, or either of them. The same thing was done in Swift v. Smith, 102 U. S. 442, and yet it was held the sale was under the decree of the court, and not under a power, and hence a redemption was allowable. The fact complainants asked, by their bills, to have a receiver appointed, is well nigh conclusive evidence it was not intended the trustees, as such, should have any further control over the trust property, or the proceeds arising from the sale thereof. It is obvious it was the. purpose of the proceeding the property should be sold under the “direction and according to. the practice of the court, ” by an officer of the court, or by a person appointed by the court to perform that special duty, and who should be under its control, and to which he should report his acts and doings in the premises. The decree rendered in the consolidated cause is nearly or quite as broad as the prayer of the respective bills. It will be observed the court ascertained the number of preferred shares outstanding, the par value of the same, and the persons holding or owning the same and who were entitled to share in the fund to retire them, and also found other facts material to the principal relief sought. The court then decreed that the declination of Wright, who was named as one of the trustees in the first trust deed, be accepted; that Pearce and Tibbetts be relieved and excused from further acting as trustees under the trust deeds, and their rights, duties and powers be devolved upon and vested in Charles A. Gregory, as active trustee, so-called, and that “said trusts be forthwith closed and determined. ” It was then further decreed, that Gregory, within ten days from the entry of the decree, proceed to sell or dispose of all the property mentioned in the trust deeds, (the real estate described in the first trust deed being also embraced in the second deed,) for cash in hand, prescribing with minuteness what notice should be given, and finally directs what disposition shall be made of the proceeds of such sales. Nothing is left to the discretion of the party making the sale. He was imperatively commanded to make distribution of the proceeds of the sales in accordance with the decree, and when that was done it should be deemed a full and complete execution of the trusts declared in each trust deed. The duties devolved upon Gregory were precisely the same as the master in chancery would perform had he been directed by the court to make the sale. He was under the control of the court, as the master would be. It is a matter of no consequence what Gregory was called in the decree,—whether “trustee, ” or “active trustee, ” or “special master. ” It is plain he was a person appointed by the court, under its general chancery powers, to execute its decree instead of its master, and by what name he was called did not and could not change the capacity in which he acted. It would be singular, indeed, if the court, in a case to foreclose a trust deed in the nature of a mortgage, and made prior to the recent statute on that subject, could, by appointing one of the trustees named therein to execute its decree, in that way cut off the statutory right the defendant, or any decree or judgment creditor, would have to redeem from the sale. Such is not the law.

There is another consideration entitled to great weight in reaching a conclusion on this question. It will be recollected the court directed that no sale be made under the first trust deed. The reason assigned for that is, the- real estate described in the first trust deed is also embraced in the second deed, and therefore the rights of complainants in the consolidated cause could be fully protected by a sale of the property mentioned in the second deed. It is not perceived how that could be true, unless there was a foreclosure of the second trust deed, under the general chancery powers of the court. It seems obvious that was done, as the party making the sale was directed, out of the proceeds of the sales, to pay, first, the cestids que trust under the -first trust deed, and the sequel shows he did so apply the proceeds of the sales made by him. Whence did Gregory derive that power? It must have been from the decree of the court, for certainly the trustees under the second deed of trust possessed no such powers. There are many other features of the case that show the sale must have been under the decree, and not under the power contained in either deed. But enough has been suggested to support the conclusion reached, that the sale was under a decree of the Superior Court, in the nature of a foreclosure, for the payment of money, and hence the statutory right of redemption existed in favor of defendant, Fitch, of which he might avail. So far as the cases are analogous, the reasoning in Swift v. Smith, supra, is in harmony with the views here expressed.

The facts in Rice v. Brown, 77 Ill. 549, are entirely different from the facts in the case being considered, and it is therefore no authority against the conclusion reached in this case. In that case the mortgagee or grantee in the trust deeds in whom was the power of sale, having died, his administrator filed a bill in the circuit court to have another trustee substituted to execute the trusts of the several trust deeds, and the court made a decree finding the amount of the indebtedness, and appointed a trustee to execute the power contained in the deeds of trust. In accordance with the appointment the new trustee sold the premises, and the same were bought in by the administrator, for the heirs of the deceased cestui que trust. That was held, and rightfully so, to have been a sale under the power, and not under the decree of the court. So far as it appears from the report of the case, the court was not asked to find the amount of the indebtedness due at that time, and there was no necessity for so doing. All it was asked to do was to substitute a new trustee to execute the power contained in the trust deeds, and that it did do. Thereafter the court retained no control whatever over the trustee or the trust fund. Here, the party appointed to make the sale was directed to make distribution of the proceeds of the sales in accordance with the decree, and was required to report his acts and doings to the court appointing him, and, as has been seen, he was invested by the decree with new and additional powers, which he did not have under the trust deeds. The cases are wholly unlike.

The decree of the Superior Court will be reversed, and the cause remanded for further proceedings conforming to this opinion.

Decree reversed,.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Illinois Central Railroad Company v. Michael Frelka.

      Filed at Ottawa May 19, 1884.

    1. Negligence—depot grounds used in common by servants of two railroad companies — reciprocal duties of the companies towards each other’s servants. Where two railroad companies have, by agreement, a joint occupancy of depot grounds, in which their respective tracks are so situated and used that the servants of the two companies must necessarily, in the proper discharge of their duties, pass over each other’s tracks, each company will owe the same duty to the servants of the other company, in the matter of observing proper care for their safety when crossing its tracks in the regular discharge of their duties, that it does to its own servants when crossing the same tracks.
    2. Same—contributory negligence—non-observance of warning to keep off the tracks. Where the servants of two railroad companies occupying the same depot grounds with their respective tracks, are required, in the performance of their duties, to pass over the tracks of both companies, a sign erected upon the grounds warning all persons to keep off the tracks, and informing them if they went upon them it would be at their peril, would not be regarded as applying to the servants of either company.
    3. Appeal—the question of excessive damages. On an appeal from a judgment of the Appellate Court affirming the judgment of the trial court in favor of the plaintiff in an action to recover damages for a personal injury occasioned by the alleged negligence of the defendant, it was assigned for error that the damages were excessive; but it was held, that was a question for the Appellate Court,—not this.'
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    The two instructions, numbered one and nine, asked in behalf of the defendant below, and refused by the trial court, are as follows:
    “1. The court instructs the jury, that upon all the evidence in this case, and under the law that fixes the rights and prescribes the duties of the parties thereto, the plaintiff has no right to recover, and it is the duty of the jury to find the defendant not guilty. ”
    “9. If the jury believe, from the evidence, that there were notices, in the English language, on the grounds or yards of the defendant, at its depot in Chicago, at the time and before the accident complained of, warning or notifying persons not to go upon its tracks or grounds in said yards, or in words to that effect, then the court instructs the jury that the plaintiff was bound to observe said notice's, and that this is the law, even if the plaintiff could not read the language in which said notices were written or painted. ”
    Mr. William Barge, for the appellant.
    Messrs. Brandt & Hoffmann, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The present appeal brings before us for review a judgment of the Appellate Court for the First District, affirming a judgment of the circuit court of Cook county, for $5000, lately recovered in that court in an action on the case, brought by Michael Frelka, the appellee, against the Illinois Central Eailroad Company, the appellant, on account of personal injuries alleged to have been caused by the negligence of the company in operating a switch engine.

The evidence in the case tends to prove that appellee, on the morning of the 18th of January, 1879, at the hour of six o’clock, or perhaps a little before, entered, by way of Eandolph street, the depot grounds of the appellant and the Michigan Central Eailroad Company, lying immediately south of the passenger depot of the two companies, situated on the west side of lake Michigan, in the city of Chicago, and that while attempting to cross the tracks of the defendant, to reach a caboose standing on the tracks of the Michigan Central company, he was struck, knocked down and dragged for a considerable distance by a switch engine of the appellant, breaking and crushing the ankle and thigh bones of his right leg, and otherwise seriously injuring him, whereby he was permanently disabled, so that he is now unable to get about, except on crutches. The depot grounds where the accident happened, were, at the time it occurred, and for many years before that time had been, in the joint occupancy, use and control of the appellant and the Michigan Central company, though each company had and operated its own tracks; but in doing so, the grounds in question, for the purpose of passing and repassing in the discharge of their duties, were open alike to the servants and employes of both companies. The greater portion of these grounds lie between Eandolph street, on the north, and Monroe street, on the south, if extended eastwardly, the two streets being about 1250 feet apart. The employes of the two companies living in the city, generally went by way of one or the other of these streets to the depot grounds, and consequently entered them, in either case, from the west side, as the city lies altogether west of them. The track upon which the accident happened, as well as several others belonging to appellant, lies west of most of the tracks of the Michigan Central, including the one on which the caboose was standing, and which appellee was trying to reach when struck by the engine,—consequently, the employes of the Michigan Central company, coming from the city, in order to reach the tracks of the latter necessarily had to cross the appellant’s tracks. The evidence also tends to show that the Michigan Central company, at the time of the accident, and for many years previous thereto, had in its employ a considerable force of men who worked at the stock yards, south of the depot grounds, but who lived in the city, and that it was the custom for them, every morning, a little before six o’clock, to assemble at the depot grounds in question, where they uniformly found a caboose, with an engine attached, standing on some of the Michigan Central tracks, in readiness to convey them to their work at the stock yards. At the time of the injury complained of, appellee- was, and for some two months before that time had been, in the employ of the Michigan Central company, and was one of the daily force living in the city that worked at the stock yards, and at the time in question was making his way across the appellant’s tracks to the caboose on the Michigan Central tracks, as heretofore stated, for the purpose of being conveyed to his work at the stock yards. By a regulation of the appellant, of many years’ standing, its employes were required, when moving an engine after night, over these grounds, to keep the bell ringing and the head-light burning, and this regulation, as a general rule, had theretofore been strictly observed by the employes of the company, though in the present instance it was wholly disregarded, and we are of opinion, under the evidence, the jury were warranted in concluding, as they probably did, the accident was occasioned by its non-observance. The evidence also tends to show appellee, in crossing appellant’s tracks between five and six o’clock in the morning, as he did, had no reason, from the usual course of business of the company, to expect any of its trains or engines would be moving at that time, as it appears to have been a matter of rare occurrence for them to be in motion at that hour. Nevertheless, appellee does not appear to have been any the less careful on this ground, for he testifies that just before receiving the injury he cast his eyes up and down the tracks as far as he could, but was unable to see or hear anything to warn him of the approach of the engine, which immediately thereafter struck him down.

The foregoing is a general outline of the facts as claimed by appellee to be established by the evidence. Whether this claim is well founded, is not for us to say. That was a question for the lower courts, which has been decided adversely to the appellant, and we are not permitted to review it. Notwithstanding, much of the argument of counsel in this case is devoted to a discussion of the weight of evidence upon questions of controverted facts, with which we have not the slightest concern, and we must therefore decline to follow them in that discussion. As an illustration of this, counsel for appellant, at the very threshold of his argument, premises that appellee, at the time of the injury, “was not in the service of the defendant, and never had been; that he was not ■intending to enter any car or caboose of the defendant; that he was on no business of appellant, and that it held out no inducement for him to go across its tracks; that he was not upon the depot grounds by any license, express-or implied, from appellant. ” Most of these statements may be admitted to be true, and really are true. But counsel, in an argument addressed to this court, is certainly not warranted in making the last statement. Whether the appellee was upon the depot grounds, at the time of the accident, by the license or consent of the appellant, was a mixed question of law and fact, which the jury, under the circumstances, were bound to pass upon, and must necessarily have found in appellee’s favor, and so we must assume in our disposition of the case. When these two companies agreed, as the circumstances clearly show they did, to a joint' occupancy of the depot and depot grounds, and located their tracks as we now find them, they were bound to know their business could not be successfully carried on without their respective servants, in the discharge of their duties, having to pass over each other’s tracks, and hence it is but reasonable to conclude they impliedly consented this might be done, and the fact that this was done for so many years, without objection, affords the strongest evidence this was the understanding of the parties. But as before stated, these were matters of fact, for the circuit and Appellate courts, and not for us.

This vital question having been settled in appellee’s favor, there is really nothing left of appellant’s case, and we fail, therefore, to perceive the pertinency of the long list of authorities cited and commented upon in appellant’s brief, to the effect that a mere trespasser or wrong-doer can not maintain an action for negligence against one who, at the time of the injury complained of, owed the plaintiff no legal duty. We do not at all question the law of the cases cited on that point, but it clearly has no application to the case before us. Under the facts, as the jury must have found, the appellant owed the same duty to the servants of the Michigan Central company, when crossing the former’s tracks in the regular discharge of their duties, that it did to its own servants when crossing the same tracks.

It follows, from what we have already said, the court properly refused to give appellant’s first instruction, which directed the jury to find for the defendant.

It appears, from the evidence, on the extreme west side of the depot grounds two signs were erected, warning all persons to keep off the tracks, and informing them if they went upon them it was at their peril. It does not distinctly appear who put up these signs, but we do not regard this as material, as they could not have been intended to apply to the servants of either of these companies whose duties required them to pass over the tracks. Such being the case, it follows the court properly refused to give the appellant’s ninth instruction, which, in effect, told the jury appellee was bound by such warning, and had no right to go upon the tracks in question.

Other objections are taken to the rulings of the court on the instructions, but we find no merit in them. Taking the instructions as a whole, we think they fairly laid down the law-applicable to the case.- If there be any ground for complaint on that score it lies with the appellee, and not the appellant.

Finally, it is objected the damages are excessive. That was a question for the Appellate Court,—not this.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Charles D. Colson v. John B. Leitch.

      Filed at Ottawa May 19, 1884

      Rehearing denied September Term, 1884.

    1. Injunction—to restrain the collection of a judgment at law for want of service on the defendant. A court of equity will not enjoin a judgment at law merely on the ground that the process in the suit in which the judgment was rendered was not served on the defendant. To justify the interliosition of a court of equity in such a ease, it must be further shown that if the relief sought be granted, a different result will be obtained from that already adjudged by the void judgment. This is the rule under the common law authorities.
    2. Same—as to the limit of such an injunction, under the statute. But under the statute, “only so much of any judgment at law shall be enjoined as the complainant shall show himself equitably not bound to pay, ” so that if he be unable to allege and prove that he has a defence against the claim upon which the judgment was founded,.in whole or in part, then the statute would forbid an injunction.
    3. Estoppel—to claim under a judgment which the plaintiff assumed to vacate. A judgment at law was obtained, as the defendant claimed, without any service of process upon him. The plaintiff in the judgment then sought to make the defendant a part), by scire facias, and in that proceeding the plaintiff filed a paper, signed by himself, purporting to vacate the judgment. The proceeding by scire facias was dismissed. Afterwards the plaintiff sought to collect his judgment by creditor’s bill, when the defendant claimed that by reason of the paper purporting to vacate the judgment the plaintiff was precluded from further claiming under it. But there was no consideration for that paper, it was adjudged of no effect for the purpose intended, and induced no change in the conduct of the defendant,—so there was no estoppel.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Charles D. Colson obtained a judgment, before one of the justices of the peace of Cook county, against John B. Leitch and Bernard Kelly. The summons issued by the justice of the peace was returned by the constable indorsed as having been properly served, thus professedly giving the justice of the peace jurisdiction of the persons of the defendants. Execution was issued on this judgment, and placed in the hands of a constable to execute, and the defendant Leitch then claimed that he had never been served with process in the case. Colson then brought suit on that judgment against the defendants, Leitch and Kelly, before another justice of the peace, but that justice permitted Leitch to go behind the return of the constable, and prove that he had not, in fact, been served with process, and thereupon gave judgment against the plaintiff. Colson then caused a scire facias to be issued on the judgment against Leitch, to make him a party to the judgment first, as aforesaid, obtained; but the justice refused to make him a party, and rendered a judgment dismissing the scire facias. Colson appealed from that judgment to the Superior Court of Cook county, and that court, on hearing, rendered judgment making Leitch a party to the original judgment before the justice of the peace, but this judgment, on appeal by Leitch to the Appellate Court for the First District, was reversed, that court holding that parol evidence was not admissible to contradict the return of the constable. Colson afterwards filed a transcript of the judgment obtained before the justice of the peace, in the office of the clerk of the circuit court, for the purpose of obtaining a lien, pursuant to the statute, upon the real estate of Leitch. Execution was thereupon issued by the clerk of the circuit court, which was subsequently returned by the sheriff, “no property found on which to levy. ” Colson then filed his creditor’s bill in the Superior Court of Cook county, against Leitch, to enforce payment of the judgment. Leitch having answered the creditor’s bill, filed a cross-bill, praying that Colson be enjoined from proceeding on his creditor’s bill, because he was not, in fact, a party to the judgment. The Superior Court, on hearing, dismissed Colson’s bill, and rendered a decree in conformity with the prayer of the cross-bill, and that decree was affirmed on appeal to the Appellate Court for the First District. The present appeal brings that decree before this court for review.
    Mr. D. S. Gooding, and Mr. Chas. W. Cooper, for the appellant :
    A court of equity has no jurisdiction to enjoin a judgment at law merely because the process in that court has not been served on the defendant. It is necessary, further, to show that the party, by the irregularity, has been precluded from urging a valid defence. (Secor v. Woodward, 8 Ala. 500; Crofts v. Dexter, id. 767.) It is not enough that the judgment was irregular,—it must be unjust. (Blackburn v. Ball, 71 Ill. 434; Hunt v. Coachman, 6 Rich. 286; Rising v. Brainard, 36 Ill. 79.) Besides, the statute is conclusive on the subject. Only so much of any judgment at law shall be enjoined as the complainant shall show himself equitably not bound to pay, etc. Rev. Stat. chap. 69, sec. 7.
    Mr. Perry A. Hull, for the appellee :
    A court of equity has full power and jurisdiction to interpose and give the appropriate relief in a case where a judgment has been obtained against a defendant without service and without notice, and in such case it is not necessary to show that a valid defence could have been made in the action at law, or to allege in the bill that such defence existed. Owens v. Ranstead, 22 Ill. 161; Bell v. Williams, 1 Head, (Tenn.) 229; Ridgeway v. Bank of Tennessee, 11 Humph. 523; Ryan & Co. v. Boyd, 33 Ark. 778; High on Injunctions, sec. 126.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Leitch’s defence to the scire facias was of a technical character, namely, that he could not be made a party to the judgment, because the record already showed that he was a party. He did not then seek to interpose any substantial defence to the cause of action, nor claim that he had been denied the opportunity to interpose such defence. He now seeks to enjoin the collection of a judgment which he insisted, then, was conclusive against him at law, and therefore insusceptible of correction. He does not deny that he owes the amount of this judgment, nor claim that he had or has any valid defence against it, of which he has been deprived by reason of not having been served with process. His case admits a valid and conclusive judgment at law upon a debt, to which he has no defence, either legal or equitable, and he claims the judgment is invalid in equity only because, in point of fact, the record is false in reciting that he was served with process. No offer is made by the bill to pay any amount that may be found due on the indebtedness.

In our opinion our statute is conclusive against the right to have collection of this judgment enjoined. It provides: “Only so much of any judgment at law shall be enjoined as the complainant shall show himself equitably not bound to pay, and so much as shall be sufficient to cover costs. ” (Rev. Stat. 1874, p. 579, sec. 7.) The mere judgment for costs, of course, the complainant is not equitably bound to pay, because, in equity, he did not incur any costs; but the amount of indebtedness included in the judgment he honestly owed, and against it he had no defence, either legal or equitable, and so it is impossible to say he was equitably not bound to pay any part of the judgment except that for costs. Equitably he is bound to pay the whole of the judgment for the debt. The right of injunction, it will be borne in mind, is not against the whole judgment because of any error in its rendition, but only as against “so much of it” as (i. e., that part of the amount of which) he shall show himself equitably not bound to pay. In short, the right to enjoin is because that which is claimed to be owed is, in equity, not owed, and not because of the form it has been made to assume. In Tennessee it has been held a judgment rendered without proper service will be enjoined, without regard to whether there was any defence to the indebtedness for which it was rendered. (Bell v. Williams, 1 Head, 229; Ridgeway v. Bank of Tennessee, 11 Humph. 523.) But in our opinion the weight of reason and of common law authority is, that a court of equity will not enjoin a judgment at law where there has been no service, unless it is alleged and proved that if the relief be granted a different result will be obtained than that already adjudged by the void judgment.

Freeman, in his work on Judgments, (sec. 498,) thus states the result of the authorities: “It has been held that a judgment rendered • without service of process, and without the knowledge of the defendant, may be relieved against without any showing on the question of merits, for the reason that in such a case the injury consists in the rendition of a judgment against a party without notice and opportunity of defence, and that it is unjust and unconscientious to attempt to enforce a judgment so obtained,”—and for this he refers', in a note, to the Tennessee cases. “But, ” he adds, “the better established rule undoubtedly is, that notwithstanding an alleged want of service of process, a court of equity will not interfere to set aside a judgment until it appears that the result will be other or different from that already reached, ” and to sustain this he cites, in a note, Taggart v. Wood, 20 Iowa, 236, Gregory v. Ford, 14 Cal. 138, Fowler v. Lee, 10 Gill & Johns. 363, Piggott v. Adkins, 3 G. Greene, (Iowa,) 427, and Crawford v. White, 17 Iowa, 560. An examination of these cases will show they sustain the author’s position.

In Secor v. Wood, 8 Ala. 500, the court said: “A court of equity has no jurisdiction to enjoin a judgment at law merely because the process in that court has not been served on the defendant. It is necessary, further, to show that the party, by the irregularity, has been precluded from urging a valid defence. ” And to the same effect was the ruling in Crofts v. Dexter, 8 Ala. 767. In Gregory v. Ford, supra, the Supreme Court of California, speaking through Mr. Justice Baldwin, said: “Can a defendant, having no defence to an action, enjoin a judgment by default, obtained on a return by the sheriff of service of process, upon the ground that the return is false,—that in fact he had no notice of the proceeding ? It is difficult to see upon what principle chancery would interfere in any such case in favor of such a defendant. In analogy to its usual course of procedure it would seem that the plaintiff having acquired, without any fraud on his part, a legal advantage, would be permitted to retain it as a means of securing a just debt, and that a court of equity would not take it away in favor of a party who comes into equity acknowledging that he owes the money, and claims only the barren right of being permitted to defend against a claim to which he had no defence. It would certainly seem that it would be quite as equitable to turn the defendant in execution over to his remedy against the shériff for a false return, under such circumstances, as to relieve him from the judgment and turn the plaintiff for redress to the sheriff.” See, also, on like principle, Gardner v. Jenkins, 14 Md. 58, and Harris v. Gwin, 10 Sm. & Mar. 563.

This question did not arise in Owens v. Ranstead, 22 Ill. 161, cited by counsel for appellee. In that case it was alleged and proved, and the opinion proceeds on the hypothesis, that the defendant, by not being served with process, was cut off and deprived from making a substantial defence. Had an offer been here made by the bill to pay whatever amount might be found to be due on the debt, a different case would have been presented; but since no such offer was made, it is unnecessary to express any opinion in that regard.

During the progress of the proceedings to make Leitch a party to the judgment by scire facias, Colson filed a paper, signed by himself, purporting to vacate the judgment, and it is seemingly contended by counsel that this must preclude him here. It could amount to nothing, since it was not an order of any court, unless as an equitable estoppel; but it was made wholly without consideration, was adjudged of no effect for the purpose intended, and induced no change of conduct or action of any kind by Leitch, and it could not, therefore, amount to an estoppel.

For the reasons given, the decree below is reversed, and the cause remanded for further proceedings consistent with this opinion.

Decree reversed.

Subsequently, upon an application for a rehearing, .the following additional opinion was filed:

Per Cubiam : A petition for rehearing has been addressed to us, praying that the language of the foregoing opinion be so modified as not to preclude, by implication, the right of appellee to amend his answer and cross-bill so as, upon the further hearing of the case, to enable him to contest the fact of his indebtedness to appellant. Nothing in the foregoing opinion was intended to imply, nor in our opinion does imply, that appellee would not, upon the further hearing of the case, have the right to amend his cross-bill and answer in this respect, nor that he would have such right. The language used has reference simply to the case as presented by the record now before us, and has no reference whatever to some other or different case that might be presented by another and different record. No question of the right to amend, or the effect of any particular amendment, could have been considered or passed upon by us, because no such question is presented by this record.


text:
    Board of Supervisors of Will County v. The People ex rel. Commissioners of Highways.

      Filed at Ottawa May 19, 1884.

    1. Mandamus—whether it will lie—as to matters which are discretionary. Where a statute does not impose an absolute obligation upon a county board to perform a certain act, but clothes it with an ultimate discretion in the matter, or where the statute is merely directory as to the act, and not mandatory, creating an absolute duty, mandamus will not lie to compel the board to perform the act.
    2. Bridges—duty of county to aid towns in their construction. - By section 110 of the act of 1879, entitled “Roads and Bridges,” an absolute duty is imposed upon counties to aid in the building of bridges by the town authorities, whenever a case is clearly brought within its provisions. This section differs from the law in the act of 1872, in giving the county boards no discretion in the matter of aid, and making the duty imperative.
    3. Same—constitutionality of act of 1879. The provisions of section 110 of the Road and Bridge act of 1879, making counties liable to contribute one-half of the expense of town bridges upon certain contingencies, is not in contravention of sections 9 and 10, of article 9, of the constitution, as to what corporate authorities may be invested with the power of taxation.
    4. Municipal taxation—whether for a local corporate purpose. The raising of money by taxation in towns or counties, in pursuance of a general law of the State, for the purpose of building bridges, maintaining public highways, and for other objects of a similar character, in which the people of the State at large are directly interested, is not the levying of a tax for a strictly local corporate purpose, within the meaning of the constitution. (Art. 9, secs. 9 and 10.)
    5. Municipal authorities, in levying taxes for such purposes, are in a large sense mere agencies of the State in carrying into effept general laws which have been enacted for the common good. When thus acting they are but parts of the general machinery of the State and county governments. The rule is different as to the mere private concerns of a municipality in which the people at large have no interest.
    6. Same—as to the agency of highway commissioners. While it is true commissioners of highways are corporate bodies, whose powers and jurisdiction are limited, territorially, to their respective towns, yet they are a part of the machinery of the county and State governments, and, as such, under certain contingencies are required to act in concert with the county authorities proper, in the building and maintaining of bridges within their respective jurisdictions.
    7. The commissioners of highways, in a case where the county is required to contribute one-half of the expense of building a bridge, do not levy a tax upon the property of the tax-payers of the county, but they simply determine, in pursuance of the statute, when the contingencies have arisen requiring the county to contribute to the building of a bridge, and ascertain and report to the county board the cost of the structure, one-half of which the law requires them to pay; and in such case it is their duty to levy a tax to raise the required amount.
    Appeal from the Circuit Court of Will county; the Hon. George W. Stipp, Judge, presiding.
    Mr. C. W. Brown, State’s Attorney, for the appellants:
    In mandamus, the relator must show a clear legal right before the court will grant the writ. If the right be doubtful or uncertain, the court will not interfere. County of St. Clair v. People, 85 Ill. 398; People v. Village of Crotty, 93 id. 180; People v. Klokke, 92 id. 134; People v. Davis, 93 id. 133; People v. Johnson, 100 id. 537; Commissioners of Highways v. People, 66 id. 339; People v. Cline, 63 id. 394; Lavalle v. Soucy, 96 id. 467.
    When the performance of a duty by a public officer is discretionary, and depends upon the exercise of his judgment as to its necessity or propriety, mandamus will not be awarded. County of St. Clair v. People, 85 Ill. 398; People ex rel. v. LaSalle County, 84 id. 307; City of Ottawa v. People, 48 id. 254; People v. Williams, 55 id. 178.
    If the act of 1879 gives a discretionary power to the board of supervisors to aid a township in constructing a bridge, then mandamus will not lie for the refusal to furnish such aid. If, however, it be mandatory, and the board left without discretion as to the levying of a tax to aid in building a bridge upon petition of the highway commissioners of a town, then it is repugnant to sections 9 and 10, of article 9, of the constitution. These sections are a limitation to the power of the legislature to impose taxes on corporations, for corporate purposes, without the assent of the corporate authorities, and corporate authorities are those municipal officers who are either directly elected by the people to be taxed, or appointed in some manner to which they have given their assent. Harwood v. St. Clair Drainage Co. 51 Ill. 130; People v. Salomon, id. 37; South Park Commissioners v. Common Council, id. 58; People v. Mayor, id. 17; Lovington v. Wider, 53 id. 302; Hessler v. Drainage Commissioners, id. 105; People v. Canty, 55 id. 42; Dunnovan v. Green, 57 id. 69; Madison County v. People, 58 id. 463; City of St. Louis v. Witts, 59 id. 156; Marshall v. Silliman, 61 id. 224; Lee v. Ruggles, 62 id. 427; Trustees v. People, 63 id. 297; Livingston County v. Weider, 64 id. 427; Decker v. Hughes, 68 id. 44; Board v. Houston, 71 id. 318; Sleight v. People, 74 id. 48; Updike v. Wright, 81 id. 49; People v. McAdams, 82 id. 356; Allhands v. People, id. 234; Hinze v. People, 92 id. 406; Cornell v. People ex rel. 107 id. 380; People v. Morgan, 90 id. 566; Dunham v. People, 96 id. 331; People v. Harper, 91 id. 368.
    Defendants are the corporate authorities of the county of Will,—a municipal corporation. Rev. Stat. chap. 34, sec. 32; Constitution, sec. 12, art. 9; People v. McAdams, 82 Ill. 359; Board v. Houston, 71 id. 318.
    A corporate purpose, or a tax imposed for a corporate purpose, is one to be expended in a manner which shall promote the general prosperity and welfare of the municipality which levies it. Johnson v. Stark County, 24 Ill. 88; Taylor v. Thompson, 42 id. 9; Railroad Co. v. Smith, 62 id. 277; Burr v. City of Carbondale, 76 id. 456; Railroad Co. v. Morris, 84 id. 418.
    The commissioners of highways of a township are a municipal corporation, and can only act in a corporate capacity. Commissioners v. Baumgartner, 41 Ill. 254; McManus v. McDonough, 107 id. 97.

      Mr. G. D. A. Parks, for the appellees:
    The act is clearly mandatory, and the duty enjoined, therein may be enforced by mandamus. People ex rel. v. Supervisors, 100 Ill. 640.
    The matter of providing suitable highways and bridges is not of merely local interest, but is of public and genéral concern. Cooley on Taxation, 94, 104, 106, 478; Norwich v. Hampshire County Comrs. 13 Pick. 61; Hingham Corporation v. Norfolk County, 6 Allen, 357; Salem Turnpike v. Essex County, 100 Mass. 283; Commonwealth v. City of Newburyport, 103 id. 129; People v. Supervisors, 20 Mich. 95; Harrison Justices v. Holland, 3 Grant, 247; Jensen v. Supervisors, 47 Wis. 312; People v. Flagg, 46 N. Y. 401.
    In the carrying out of the system of highways in this State, the counties may be regarded but as convenient local agents for executing the functions of the State government; (Cooley on Taxation, 482.) And as such agencies counties are under the absolute control of the legislature. They may be required to construct roads and bridges by mandatory laws. Harris v. Whiteside County, 105 Ill. 405; Symonds v. Clay County, 71 id. 357; Board of Supervisors v. Sangamon County, 63 id. 66; Springfield v. County Judge, 25 id. 191; Dennis v. Maynard, 15 id. 479; Dillon on Mun. Corp. sec. 10, note 1; Hamilton County v. Mighels, 7 Ohio St. 109; Town of Fox v. Town of Kendall, 97 Ill. 73; Freeport v. Board of Supervisors, 41 id. 495.
    The fact that the conditions for the operation of the statute may not exist in every county of the State at the same time, does not make it local or special. It is still a law of universal application. Town of Fox v. Town of Kendall, 97 Ill. 77; Home Ins. Co. v. Swigert, 104 id. 666.
    The fact that the town shall determine when the county shall lend its aid to the building of the bridge, is at least but a question of means in reaching a legitimate end, and may well be lodged where it is. Harris v. Whiteside County, 105 Ill. 405; People v. Marshall, 1 Gilm. 685; Knickerbocker v. People, 102 Ill. 226; Railroad Co. v. Warrington, 92 id. 159; People v. Harper, 91 id. 369.
    Messrs. Garnsey & Knox, for the appellants, in reply:
    Under our constitution the matter of local highways or of State highways, so far as their opening, altering, laying out or maintaining is concerned, is committed to the several localities where they are situated. The legislature can not interfere with them, or impose a burden for their maintenance or building on any community within the State, or authorize other than the corporate authorities of the proper taxing district to do so. (Const. 1870, sec. 22, art. 4.) The constitution is a limitation on the power of the legislature in that regard. (Jensen v. Supervisors, 47 Wis. 312.) The power to tax the county could not he properly conferred upon the highway commissioners. The entire question presented by appellees is summed up by this court adversely to them, as follows: “Where it is sought to impose burdens upon municipal or quasi municipal corporations, to be discharged by revenue raised by taxation on the local constituency, under the constitution the burden can only be -imposed by the local corporate authorities. ” People v. Harper, 91 Ill. 368.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This appeal brings before us for review a judgment of the circuit court of Will county, awarding a peremptory writ of mandamus, commanding the board of supervisors of said county to cause to be levied and collected, upon the taxable property of the county, a tax sufficient to realize therefrom the sum of $9088.50, to aid the commissioners of highways of the town of Wilmington, in said county, to build an iron bridge across Kankakee river, in the city of Wilmington, in said town, said sum being one-half of the estimated cost of said bridge. The petition is in due form, and clearly brings the case within the provisions of section 110 of the act of 1879, entitled “Roads and Bridges, ” which is as follows: “When it shall be necessary to construct or repair any bridge in any town, or to build a bridge over any stream between towns, or over streams or roads between towns in the same county, which would be an unreasonable burden to the same, the cost of which will be more than can be -raised in one year by ordinary taxes for bridge purposes in such town or one of such towns, the commissioners of highways of either town .desiring to build such bridge shall present a petition to the county board of the county in which such town or towns is situated, praying for an appropriation from the county treasury, to aid in the building, constructing and repairing of such bridge; and such county board shall, when one-half the necessary funds have been provided for by the town authorities of either or both such town or towns, appropriate the other half: Provided, that all unexpended surplus of any appropriation that may be granted by the county under the provisions of this section, shall be paid back into the treasury. And all funds provided to be raised under this section shall be expended by and under the joint control of the commissioners of highways of the town asking such aid, and two persons appointed by the county board of the county granting the same. ”

The result of this appeal depends upon the validity and construction which must be given to the above section of the statute. No question is made as to the necessity of the bridge, or as to the fact its cost would be more than could be raised in one year, by ordinary taxes for bridge purposes, in said town of Wilmington,—nor, indeed, is any defence of that character interposed. But the contention of the board of supervisors is, that notwithstanding the peremptory terms in which the above section is drawn, it imposes no absolute obligation upon the county authorities to assist highway commissioners in building a bridge; that in all cases of such application they are clothed with an ultimate discretion, in the exercise of- which they are answerable to no one,—or, more shortly put, the contention is, the statute is merely directory, and not mandatory.

Assuming this position to be correct, we agree with counsel for appellants mandamus would not lie to compel county authorities to assist in the building of a bridge, in any case. (The People ex rel. v. LaSalle County, 84 Ill. 307.) We are unable, however, to concur in this view of the subject. We have no doubt the legislature intended, by the section in question, to impose an absolute duty on counties to aid in the building of bridges whenever a case was clearly brought within its provisions, as was done here. If there was any well founded doubt as to the correctness of this construction, it would certainly be removed by comparing the 111th section of the act of 1872, on the same subject, with the section now under consideration, the latter being nothing more than the former section amended. The only substantial difference between the acts of 1872 and 1879, with respect to the present question, is, that by the former the county authorities were simply authorized to aid commissioners of highways in building bridges, under circumstances like the present. The whole subject is, by that act, left to the discretion of the board of supervisors. Under the act-of 1879 they have no discretion in the premises. The language of the former act is, “may make an appropriation, ” etc., while that of the latter is, “shall * * * appropriate, ” etc. It is thus clear the very object of the amendment was to make the act imperative on the county authorities.

Assuming the section in question to be imperative, as we hold it is, appellants then insist it is in violation of sections 9 and 10, of article 9, of the present constitution, which are as follows:

“Sec. 9. The General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements, by special assessment, or by special taxation of contiguous property, or otherwise. - For all other corporate purposes all municipal corporations may be vested with authority to assess and collect taxes; but such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same.
“Sec. 10. The General Assembly shall not impose taxes upon municipal corporations, or the inhabitants or property thereof, for corporate purposes, but shall require that all the taxable property within the limits of municipal corporations shall be taxed for the payment of debts contracted under authority of law, such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same. Private property shall not be liable tb be taken or sold for the payment of .the corporate debts of a municipal corporation. ”

Judging from the space given to this question in the argument, we presume it is mainly relied on for a reversal.

The reasons assigned why this section of the statute conflicts with the above provisions of the constitution are, that it attempts to confer discretionary power of local taxation upon persons other than the corporate authorities of the district to be taxed; that it authorizes the levy of a tax for township purposes on property not subject to the jurisdiction of the authority levying the tax; that the legislature is powerless to grant the right of corporate or local taxation to any other persons than the local authorities elected by the people of the municipality, or appointed in some manner to which they have given their assent, or to impose a debt upon a municipal corporation without its consent. When properly limited, the propositions embodied in the foregoing reasons, in so far as they purport to be propositions of law, may be admitted to be correct. But we do not concur in the application which is sought to be made of them in this case. It is not true, as is assumed by counsel, that the raising of money by taxation in towns or counties, in pursuance of a general law of the State, for the purpose of building bridges, maintaining public highways, and for other objects of a similar character in which the people of the State at large are directly interested, is the levying of a tax for a strictly local corporate purpose, within the meaning of the constitution, as construed in Marshall v. Silliman, 61 Ill. 218, and other eases of like character cited in appellants’ brief, and hence the authorities in question have no controlling influence in the decision of this case. Municipal authorities, in levying taxes for such purposes, are, in a large sense, mere agencies of the State in carrying into effect general laws which have been enacted for the common good. They are, in fact, when thus acting, but parts of the general machinery of the State and county governments. As to the mere private concerns of a municipality, in which the people at large have no interest, and which are strictly local in their character, of course the rule is different. The distinction here recognized is fully sustained by both reason and authority. (Cooley on Taxation, 478.) The author here says i “Elsewhere in this work the public highways have been spoken of as matters of general concern to the people of the whole State. In a certain sense they are of local concern, because the local organizations construct and support them; but they are constructed for the general benefit and use of all the people, and only turned over to the localities as a matter of apportionment. This being the case, any town, city or county that neglects its duty in this regard may be compelled, by the interference of the State, and on State account, to perform it. This doctrine applies to common highways. Whether it can be extended to exceptional means of passage and transportation, will be considered further on. ”

While it is true commissioners of highways, in counties under township organization, are corporate bodies, whose powers and jurisdiction are limited territorially to the respective townships to which they belong, yet they are a part of the machinery of the county and State governments, and as such, under certain contingencies, are required to act in concert with the county authorities proper, in the building and maintaining of bridges within their respective jurisdictions. In certain contingencies, which the law specifies, the supervisors are required to bear one-half of the expense of building bridges. The duty thus imposed on them is just as obligatory as that which requires them to build jails, court houses and the like, and the levying of a tax for one of these objects is just as much for a corporate purpose as it is for the other. In these cases the commissioners of highways do not, as is assumed throughout appellants’ arguments, levy a tax upon the property of the tax-payers of the county. They simply determine, in pursuance of the statute, when the contingencies have arisen requiring the county to contribute to the building of a bridge, and ascertain and report to the county authorities the cost of the construction, one-half of which the law itself requires them to pay; and in such case it is their duty to levy a tax to raise the required amount. The commissioners of highways, in discharging the duties which the law has imposed upon them in a case like this, are acting just as much on behalf of the county as of the town, and the county is therefore equally bound to respond for its share of the expense. Such being the law, it follows the whole theory of the defence must fail.

Other objections of minor importance are made in the argument, but we do not think there is any merit in them, or regard them of sufficient importance to require a discussion at our hands.

The judgment will be affirmed.

Judgment affirmed.