Bank v. Dennis

• Decision Date: 30 April 1865
• Citation: 37 Ill. 381,1865 WL 2836
• Parties: NIANTIC BANK et al.v.ROBERT B. DENNIS.
• Court: Illinois Supreme Court

37 Ill. 381

1865 WL 2836 (Ill.)

NIANTIC BANK et al.

v.ROBERT B. DENNIS.

Supreme Court of Illinois.

April Term, 1865.

APPEAL from the Circuit Court of Cook county; Hon. E. S. WILLIAMS, J.

This was a bill in chancery, filed by Dennis et al. against the Niantic Bank et al., to redeem certain real estate. The facts appear fully in the opinion of the court.

KING & SCOTT, for appellants.

W. T. BURGESS, for appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the court.

On the 19th of October, 1846, one Daniel Davidson leased from one Richard R. Swift, the undivided third of a certain tract of land situate in Cook county, forever, at an annual rental of one hundred dollars. There was a provision in the lease that whenever Davidson should pay Swift seven hundred dollars the latter would deed him the premises.

On the 9th of March, 1853, Davidson assigned the lease to one Bronson, cashier of the Merchants & Mechanics' Bank, to hold as security for any indebtedness Davidson might contract at the bank. The assignment was not, at that time, recorded. On the 28th of November, 1853, Davidson then being indebted to the bank over $4,000, it took judgment against him on one of his notes, in the name of King, attorney of the bank, the judgment being for $1,047.76, and rendered in the Circuit Court of Cook county. Execution was duly issued.

On the 23d of January, 1854, Dennis, the complainant in this case, recovered a judgment in the Cook County Common Pleas against Davidson, for $6,025. An execution was duly issued, and the premises in controversy were afterwards, on the 12th of May, 1856, sold under this judgment. There was no deed made and delivered under this sale, and the judgment is therefore important, for the purposes of this suit, only so far as its existence explains subsequent transactions.

On the sixth of February, 1854, Bronson, in behalf of the bank, paid Swift the $700 stipulated in said lease as the purchase money, and received from him a conveyance of the premises. This was done with the consent of Davidson, and the land was taken by the bank in satisfaction of the debt due to it from Davidson. The original lease and the assignment thereof as security to Bronson, were now recorded in the Recorder's office for the first time, together with the deed to Bronson, the record bearing date February 6th, 1854. On the 5th of May, 1857, an execution was issued on the King or bank judgment, and levied on the premises in controversy. The premises were struck off to King, the attorney of the bank. The judgment had been once assigned by King to Fitch & Hewes, but on the 7th of April, 1857, they had re-assigned it to Wentworth, the president of the bank. It must therefore be considered as belonging to the bank at the time the execution was issued.

On the 27th of August, 1858, Dennis, the complainant, recovered another judgment against Davidson for $9,295, and on the same day, sued out an execution and redeemed from the sale to King, under the King or bank judgment, paying $652.80 redemption, and on the 13th of September, 1858, the premises were again exposed by the Sheriff, at public sale, and there being no higher bid than the redemption paid by Dennis, they were struck off and deeded to him by the Sheriff. He then filed his bill to redeem, and procure a conveyance of the legal title which had passed from Swift to Bronson, as cashier of the Merchants & Mechanics' Bank, making all persons interested parties, and by an amendment bringing in the Niantic Bank, to which the Merchants & Mechanics' Bank had sold and caused the premises to be conveyed on the 20th of July, 1858. The court allowed the complainant to redeem by paying the $700 and interest, which the bank had paid Swift for the legal title, and all taxes paid by the bank and interest, the whole amounting to $1,549.35. The defendants below bring the record to this court, and the complainant below assigns cross-errors. There were some other sales of the premises made by the Merchants & Mechanics' Bank, before the final sale to the Niantic Bank, but we have stated all the facts material to the disposition or proper understanding of the case.

From what has been said it appears that the eldest lien on the premises was the bank judgment in the name of King, its attorney, against Davidson, in November, 1853. The second lien was the judgment in favor of the complainant, Dennis, of January 23d, 1854. The assignment of the lease from Davidson to Bronson, as security for the bank, was, in fact, prior in time to both of these judgments, but not being recorded until February 6th, 1854, it became junior to both as to third persons without actual notice, and it is not pretended that Dennis had such notice. The lien of these two judgments upon the equitable estate of Davidson was in no wise affected by the fact that the lease, under which that estate arose, was not recorded. Neither, under our statute, was it affected by the fact that his...