Asher v. Mitchell

• Decision Date: 31 August 1881
• Citation: 9 Ill.App. 335,9 Bradw. 335
• Parties: JOHN A. ASHERv.JAMES MITCHELL.
• Court: United States Appellate Court of Illinois

9 Ill.App. 335

9 Bradw. 335

JOHN A. ASHER

v.JAMES MITCHELL.

Appellate Court of Illinois, Fourth District.

August Term, 1881.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Jersey county; the Hon. JESSE J. PHILLIPS, Judge, presiding. Opinion filed October 6, 1881.

Messrs. WARREN & POGUE, for plaintiff in error; that a purchaser of land, having no notice of a prior judgment upon it, who holds possession with payment of taxes for seven years, holds it discharged of the judgment sale, cited Yoakum v. Harrison, 85 Ill. 202.

The doctrine of lis pendens loses its force where successive continuances occur and the rights of third parties intervene: Ehrman v. Kendrick, 1 Met. 146; Fox v. Reeder, 28 Ohio St. 181; Preston v. Tublin, 1 Vern. 286; Murray v. Ballou, 1 Johns. Ch. 566; Watson v. Wilson, 2 Dana, 407; Clarkson v. Morgan, 6 B. Mon. 446; 2 Sugden on Vendors, 535.

As to the right to recover for improvements placed upon the premises: Kraus v. Means, 12 Kan. 338; Graeme v. Cullen, 23 Gratt. 266; Cole v. Johnson, 53 Miss. 100; Dothage v. Stuart, 35 Mo. 255; Whitney v. Richardson, 31 Vt. 300; Stebbins v. Guthrie, 4 Kan. 366; Craton v. Wright, 16 Ia. 137; Saunders v. Wilson, 19 Tex. 194; Dorn v. Dunham, 24 Tex. 379; McConnell v. Holobush, 11 Ill. 61; Bradley v. Snyder, 14 Ill. 263; Miller v. Thomas, 14 Ill. 428; Ross v. Irving, 14 Ill. 171; Hart's Heirs v. Bagley, Hard. 597; Jones v. Jones, 4 Gill. 88; Montag v. Linn, 27 Ill. 328: Blair v. Chamberlain, 39 Ill. 521; Morgan v. Clayton, 61 Ill. 35; Smith v. Knoebel, 82 Ill. 392; North v. North, 84 Ill 442; Thomas v. Thomas, 16 B. Mon. 420; Whitney v. Richardson, 31 Vt. 306; Cawder v. Lewis, 1 Young & Coll, 433; Green v. Biddle, 1 Wheat. 77.

Upon the question of damages on dissolution of the injunction: Fisher v. Tribbey, 5 Bradwell 335; Steele v. Thatcher, 56 Ill. 257; Hedges v. Myers, 5 Bradwell 347; Alexander v. Colcord, 85 Ill. 328.

Mr. WM. M. JACKSON and Messrs. SNEDEKER & HAMILTON, for defendant in error; as to notice by recording of deed, cited Shannon v. Hall, 72 Ill. 354; Farrar v. Payne, 73 Ill. 82; Hall v. Shannon, 85 Ill. 473.

A purchaser pendente lite is bound by the decree, the same as parties to the suit: Jackson v. Warren, 32 Ill. 331; Dickson v. Todd, 43 Ill. 504.

BAKER, J.

At the March term, 1881, of the Jersey Circuit Court, a second amended bill was filed by John A. Asher, complainant in that court and plaintiff in error here, which said bill it was stipulated upon the record should stand as a substitute for the original and amended bill theretofore filed herein. Afterwards a demurrer was sustained to said second amended bill, and it was dismissed and a decree entered against said Asher for costs. At the same time the court assessed the damages occasioned by an injunction (restraining the prosecution of a certain ejectment suit for the recovery of the lot and premises in controversy between the parties), which injunction had been allowed upon the filing of the original bill, and afterwards dissolved, and suggestions of damages filed. The court assessed the damages of James Mitchell, one of the defendants, at $500, and rendered judgment and awarded execution therefor against said Asher.

The bill of Asher shows he is the grantee of the purchaser of the lot at a mortgage sale under a second mortgage, and that Mitchell derives his title under a decree of foreclosure, sale and deed, based upon the prior mortgage in the same premises. Asher being in possession under his title, and having no actual notice of the senior mortgage, made certain valuable and lasting improvements upon the lot; and the object of his bill is to recover the value of such improvements and have the same decreed a lien in his favor on the premises, and to have the lot sold, in default of payment of such value, to pay the same. The demurrer was properly sustained and the bill properly dismissed. There are two considerations, either of which necessarily leads to this conclusion.

One Charles H. Roberts was the mortgagor in both mortgages, and Asher must stand in his shoes as respects the rights of those claiming under the first mortgage. When Roberts had given the first mortgage, and it had been duly recorded, he had nothing left for the subsequent mortgage to cover but the equity of redemption. The bill shows that Roberts abandoned his homestead in 1864, and that the equity of redemption has been cut off by the foreclosure suit and decree, and the sale and deed thereunder. The first mortgage, without release or waiver of the homestead right and exemption, took precedence, upon the abandonment of the homestead, over the subsequent mortgage with such waiver. Asher v. Mitchell, 92 Ill. 481, and authorities there cited. And it appears from the facts stated in the bill, that Asher purchased the lot pendente lite, and he is therefore bound by the decree in the foreclosure suit. Jackson v. Warren, 32 Ill. 331; Dickson v. Todd, 43 Ib. 504. As Roberts could not make claim as against the first mortgages, and those holding under them, for improvements put by him upon the lot after the execution of the mortgage, so, also, his subsequent grantees cannot make such claim. The second consideration is this:

The averment in the last amended bill is that complainant continued to hold the premises “until put out of possession thereof by a writ of possession issued in an ejectment suit, commenced by said James Mitchell against your orator in the circuit court of Jersey county aforesaid, and said James Mitchell has ever since held the possession thereof, and now has the possession thereof under said writ.” But, among the findings of the court below, in its final decree, is a finding that the ejectment suit, wherein the said Mitchell is plaintiff and said Asher is defendant, “is now pending in this court.” Let this be as it...