Boynton v. Pierce

• Decision Date: 19 June 1894
• Citation: 37 N.E. 1024,151 Ill. 197
• Parties: BOYNTON v. PIERCE et al.
• Court: Illinois Supreme Court

151 Ill. 197

37 N.E. 1024

BOYNTON

v.PIERCE et al.¹

Supreme Court of Illinois.

June 19, 1894.

Appeal from appellate court, second district.

Bill for injunction by Charles O. Boynton against Daniel Pierce, Moses Dean, and Reuben J. Holcomb. Defendants obtained a decree, which was affirmed by the appellate court. Complainant appeals.Hopkins, Aldrich & Thatcher, for appellant.

Chas. Wheaton and D. J. Carnes, for appellees.

This was a bill in equity, brought by Charles O. Boynton, appellant, against Daniel Pierce, Moses Dean, and Reuben J. Holcomb, to enjoin the sale of N. W. 1/4 and N. E. 1/4 of section 19, 39 N., range 5 E., in De Kalb county, on an execution issued on a certain judgment in favor of Pierce and Dean against W. C. Wilcox, under which the premises were redeemed from a prior sale made under Dean in a proceeding to enforce a mechanic's lien in favor of William and Samuel Loomis against W. C. Wilcox et al. The bill also prayed that a certificate of redemption, issued and filed by the sheriff, Reuben J. Holcomb, might be set aside, and the redemption made by Pierce and Dean as judgment creditors might also be vacated. Upon an examination of the record it appears that W. C. Wilcox originally owned the two quarter sections of land above described, and in 1865, being indebted to John Waterman in the sum of $2,580, made and exeucted to him a note and mortgage for that amuont upon the premises. In 1866, being also indebted to John Sturtevant in the sum of $3,234, he executed a mortgage to him for that amount. On the 25th of June, 1868, he executed another mortgage on the same premises to James S. Waterman for $3,000, to secure the amount which he then owed to him; and on December 1, 1869, being also indebted to appellant, C. O. Boynton, made and executed to him a note secured by a mortgage on the same premises for $4,165. On May 6, 1872, in vacation, in the circuit court of De Kalb county, appellees Pierce and Dean recovered a judgment against said W. C. Wilcox for the sum of $793.82. In May, 1872, William Loomis and Samuel Loomis filed in the circuit court of De Kalb county a petition for mechanic's lien against said premises, and made W. C. Wilcox, Daniel Pierce, Moses Dean, John Waterman, James S. Waterman, Charles O. Boynton, John Sturtevant, and James O. Wilcox defendants. The petitioners, by the allegations in the petition, showed that they were entitled to a lien on the premises for the sum of $418.86, which was prior in date to any lien acquired by either of the defendants. The appellant, Boynton, appeared, and answered the petition, but the other defendants failed to appear, and were defaulted. On the trial the court found that petitioners had furnished materials to Wilcox for the erection of a house on the premises; that appellant, Boynton, purchased the premises from Wilcox after said materials were furnished to said Wilcox, and said Boynton stipulated and agreed with said Wilcox to pay complainant the amount mentioned in said promissory note. The court also found that defendant, as a part of the consideration mentioned in said deed, was to pay complainants the amount of their claim herein mentioned. The court then decreed that the complainant have a lien on the premises above described for the amount so due complainant from W. C. Wilcox; that, unless the defendants, or one of them, pay complainants $549.30, with interest thereon from the date of this decree, by April 1, 1875, the master make sale, etc. On the 19th day of December, 1876, after having given due notice, the master in chancery sold the premises under the decree, and the petitioners William and Samuel Loomis became the purchasers for $661.74, the amount of their indebtedness, and costs. No certificate of redemption having been filed within the 12 months allowed by law to redeem, on the 18th day of March, 1878,-one day before the 15 months expired,-Pierce and Dean caused an execution to be issued on their judgment, and placed the same in the hands of the sheriff, and at the same time delivered to the sheriff the amount required to redeem the premises from the sale under the decree in the mechanic's lien proceeding. The sheriff accepted the redemption money, levied the execution on the land, and filed a certificate showing that the lands had been redeemed by Pierce and Dean, judgment creditors.

CRAIG, J. (after stating the facts).

Section 16, c. 77, of our statute entitled ‘Judgments, Decrees,’ etc., provides: ‘When any real estate is sold by virtue of an execution, judgment or decree,’ etc., ‘the officer making the sale shall give to the purchaser a certificate describing the premises, showing amount paid or bid, the time when the purchaser will be entitled to a deed,’ etc. Section 17 requires the officer making the sale to file a duplicate of such certificate in the office of the recorder of the county where the property is located, which shall be recorded. Section 18 provides that any defendant, his heirs,...