Blair v. Chamblin

• Decision Date: 31 January 1866
• Citation: 1866 WL 4428,39 Ill. 521,89 Am.Dec. 322
• Parties: JOHN L. BLAIR et al.v.WILLIAM J. CHAMBLIN et al.
• Court: Illinois Supreme Court

39 Ill. 521

1866 WL 4428 (Ill.)

89 Am.Dec. 322

JOHN L. BLAIR et al.

v.WILLIAM J. CHAMBLIN et al.

Supreme Court of Illinois.

January Term, 1866.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Mason county; the Hon. JAMES HARRIOTT, Judge, presiding.

The opinion of the Court contains a sufficient statement of the case.

Mr. DAVID A. SMITH, for the appellants.

Mr. WILLIAM H. HERNDON, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This is a bill brought by the appellants, as purchasers under judgment and execution, to redeem from a prior deed of trust. The material facts, so far as they affect the opinion of the court, are as follows:

On the 12th January, 1858, one Tunison executed to one Wright his note for $1,250, falling due in one year, bearing ten per cent. interest from date, and ending with these words: “And if this note is not paid at maturity, the whole amount then to draw twenty-five per cent. per annum thereafter as damages for delay.” Tunison also executed to Wright a deed of trust upon 720 acres of land in Mason county, to secure the payment of this note, which was recorded February 6, 1858, and was the oldest lien upon the land. At the April Term, 1859, of the Alton City Court, one Barry recovered a judgment against Tunison for $926.63, upon which execution was issued to the sheriff of Mason county, and by him levied on the same land, and a certificate of levy duly filed in the recorder's office at ten o'clock A. M. on the 3d of June, 1859.

On the same day, but a few hours later, Chamblin, the appellee, filed for record an absolute deed from Tunison and wife to himself, bearing date May 30th, 1859, and being for a nominal consideration of one dollar. This deed was given to secure a general indebtedness from Tunison to Chamblin, which, by an award made between them on the 16th of July, 1860, was determined to be $1,552.48. On the 29th of August 1859, Chamblin bought of Wright the above mentioned note from Tunison to him secured by the deed of trust.

On the 25th of June, 1859, the land was sold under the Barry execution and bid in by him for the amount of his judgment.

At the October Term, 1859, of the Madison Circuit Court, Blair, Ballinger & Co., appellants, recovered judgment against Tunison for $751.89, and on the 9th of June, 1860, redeemed from the Barry sale, and on the 1st of August, 1860, sold under their own execution. They were the purchasers at this sale, and the sheriff made them a deed.

They then filed their bill in the Mason Circuit Court against Chamblin as owner of the Wright note and deed of trust, to redeem said deed.

Chamblin answers, setting up a large indebtedness from Tunison to himself, independently of the Wright note, and setting up the absolute deed as security for the general indebtedness.

Tunison was party defendant to the original bill, but dying pending the proceedings, his wife voluntarily came in and had herself made defendant as his administratrix. She also filed a cross-bill, claiming the right to redeem as dowress.

What we have said presents the facts and pleadings so far as they are important to the decision of the case. The Circuit Court decreed the complainants to pay the Wright note and twenty-five per cent. interest, and also the debt secured by the absolute deed, from which decree they appealed.

It is urged by the counsel for the appellee that the appellants proceeded so irregularly in redeeming, as judgment creditors, from the Barry sale, that they acquired no title under the sheriff's deed, and hence have no right of redemption from the Wright deed of trust. The irregularity consisted in levying their execution and paying the redemption money to the sheriff before the expiration of a year from the day of sale. The subsequent proceedings seem to have been regular, as the sale was made on the first of August, and the year had expired on the 25th of June.

Unquestionably, Tunison, the judgment debtor, or rather Chamblin, his grantee, had the right, within the year, to disregard the steps taken by the appellants with a view to redemption, and himself to redeem. Had he done this the appellants could not have consummated their redemption. This he did not choose to do, but allowed the title acquired by Barry, at the sale under his execution, to ripen either in Barry or in Blair, as the redeeming creditor; and, so far as Chamblin was concerned, it did not matter to which of them the sheriff should make his deed. Chamblin's rights were gone, by his failure to redeem within the year, except such rights as he might hold paramount to the judgment.

Whether the irregularities of Blair in redeeming would have enabled Barry to treat the redemption as invalid, and insist upon a deed to himself, it is needless to decide. There is nothing in the record before as to indicate that Barry did not acquiesce in Blair's proceedings, and receive the redemption money. The sheriff deeded to Blair, and it is not intimated in the record, or arguments of counsel, that any opposition was made by Barry. We must presume then that he acquiesced in the redemption, and waived whatever irregularities had intervened. He at least does not complain, and he is the only person who has the right to do so. The moment the year expired, the irregularities became, as to Chamblin, res inter alios. Blair, with the consent of Barry, is now substituted to all the rights of the latter, and has precisely the same standing in court for the purposes of this bill that Barry would have had.

Against this view of the validity of Blair's redemption, counsel have cited the cases of Merry v. Bostwick, 13 Ill. 398, and Watson v. Reissig, 24 Id. 281. The principle established by those cases is, that the judgment debtor's right of redemption, within the year, cannot be levied on and sold under execution, since to permit this would destroy his right to redeem, which is intended to be personal and exclusive in him during the twelve months. In sustaining the redemption by Blair, we do not depart from the authority of those cases, for the sale under his execution was not made until after the expiration of the year. The only irregularities consisted in paying the redemption money to the sheriff, and causing him to indorse the levy on the execution within the year, but the sale was not made until thirty-five days after the expiration of the year, and therefore occurred precisely as it might have done if the levy had been made, and the redemption money paid on the first day after its expiration. For the purposes of the sale, the parties treated the redemption and levy as having been made after the year had closed. We are not prepared to admit that the mere fact that the money was paid to the...