Day v. William F. Graham.

• Court: Illinois Supreme Court
• Writing for the Court: SCATES
• Citation: Day v. William F. Graham., 1 Gilman 435, 6 Ill. 435, 1844 WL 4095 (Ill. 1844)
• Decision Date: 31 December 1844
• Parties: JAMES DAY et al.v.WILLIAM F. GRAHAM.

1 Gilman 435

6 Ill. 435

1844 WL 4095 (Ill.)

JAMES DAY et al.

v.WILLIAM F. GRAHAM.

Supreme Court of Illinois.

December Term, 1844.

THIS was a proceeding by motion in the La Salle circuit court, made by sundry judgment creditors and others, judgment debtors, at the November term thereof, 1842, to set aside a fi. fa. and sale made by virtue of the same. The motion was based upon the records and proceedings in the cause, and upon affidavit. The defendant resisted the motion, and filed counter affidavits, when the same was taken under advisement. Afterwards, at the November term, 1843, the Hon. JOHN D. CATON presiding, the motion was denied.

The material facts in the case appear in the opinion of the court.

J. BUTTERFIELD, and O. PETERS, for the plaintiffs in error.

N. H. PURPLE, for the defendant in error.

SCATES, J.^a1

In 1837, Graham obtained a judgment against Henry L. Brush, James Day and twelve others in the La Salle circuit court, for two hundred, forty-six dollars, and twenty-nine cents, debt, and twenty-two dollars and seventy-five cents, costs, by John V. A. Hoes, his attorney. On the twenty-second day of September, 1837, the following entry of this judgment was made in the judgment docket:

“Brush, Henry L. et al. | William F. Graham, $246.29.

+---------+
                ¦19.62 1/2¦
                +---------¦
                ¦3.12 1/2 ¦
                +---------¦
                ¦$22.75.” ¦
                +---------+
                

In October, an execution issued, upon which two hundred, thirty-three dollars, and fifty-five and three fourths cents were made, and indorsed. On the eighth day of 1838, another issued for the residue which was, by an indorsement, thirty-six dollars, and seventy-eight and one-half cents, with interest from the twenty-second day of September, 1837. On the twenty-sixth day of May, 1838, the sheriff returned it with his certificate thereto attached, by which it appeared that he had levied the same upon eight distinct parcels of land amounting to seven hundred and twenty acres, lying in eight different sections, five different townships, and four different ranges, and also upon four town lots in the town of Ottawa; that on the twenty-ninth day of April, at nine o'clock, A. M., he proceeded to offer said lands for sale, at the court house door, in separate and distinct parcels, and received no bid for either of them. He then offered the whole together, when John V. A. Hoes, bid for whole, fifty dollars, and sixty-two and a half cents, which being the highest and best bid, he sold the same to him at that sum. The sheriff executed a deed to Hoes for these lands, on the thirtieth day of July, 1840, which was filed for record on the fourteenth day of April, 1842.

At the November term of said court, 1843, the plaintiffs in error, and six other judgment creditors came by attorney, and upon due notice to Hoes, as attorney for Graham upon the record, and as purchaser at said sale, moved the court to set aside the execution, and sale made under it, and all subsequent proceedings, for irregularity in issuing it, because there was no docket of any judgment, which would authorize its issuing, and that the sale under it was irregular, in violation of law, fraudulent and oppressive.

In support of this motion, the plaintiffs, Day and the other defendants in that judgment, six others as judgment creditors of Day, read the affidavit of Justin Butterfield, their attorney in this motion, and the attorney of the latter on record for obtaining their two respective judgments against Day, which states in substance, among other things, that at the time said property was bid off by Hoes, it was worth four thousand dollars or thereabout, as he is informed and believes, and still is worth that sum; that at the time of the sale, the title of all said land was in the said James Day, as appears by the records in the recorder's office, as deponent verily believes, and that there was no dispute or doubt about the title to said lands; that at the time of the sale, and most of the time since, the said James Day was and has been deranged, or a lunatic, and wholly incompetent to transact business of any kind; that Rhodes and C. & W. H. Weed, three of the creditors represented in this motion, at the April term of said court, 1838, recovered a judgment against James Day for the sum of three thousand, five hundred, fifty-five dollars and twenty-one cents, damages and costs; that execution issued thereon on the nineteenth day of October, 1839, which was levied on five tracts and one lot in Ottawa, being the same lands purchased by said Hoes, and after duly advertising, the same were sold by the sheriff on the twentieth day of December, 1839, and bid off by the plaintiffs in that judgment in separate parcels at separate sums, amounting in the whole to two thousand, nine hundred dollars; that Swords, Halstead and Corning, the other three creditors represented in this motion, at the same term of said court, 1838, recovered a judgment against said Day, for the sum of one thousand, one hundred, twenty-three dollars and forty-four cents, damages and costs; that execution issued thereon on the nineteenth day of October, 1839, which was duly levied on two other tracts of the same land sold to said Hoes, and duly advertised and sold on the twentieth day of December, 1839, to the said plaintiffs in the last mentioned judgment, in separate parcels and at separate sums, amounting to the sum of nine hundred dollars; that the bids in the aggregate by said creditors of Day, amount to the sum of three thousand, eight hundred dollars, for the same lands in part, sold to Hoes, with some others at fifty dollars and sixty-four cents. He further states, that he and his partner, J. H. Collins, were the attorneys of record of said creditors, and still are; that the creditors reside in New York City; that deponent and his partner made diligent search of the records of the La Salle circuit court, both before and after the sales last aforesaid, for judgments against the said Day and could find no docket of any judgment against him prior to those last mentioned; and that he and his partner were ignorant in fact of any such judgment in favor of Graham and against Day and others, until some time in the summer of 1843, and at the last term of this court before this motion, said Hoes exhibits to them his title deed from the sheriff.

John V. A. Hoes appeared in resistance of said motion, and read the affidavits of Reddick, the sheriff, J. O. Glover, Geo. H. Norris, L. Leland, A. Woodruff, M. E. Hollister, another by himself, and a certificate of the recorder of said county; and also the written consent of seven of the defendants in the judgment, that the motion made on their behalf might be denied.

The substance of these affidavits, so far as it may not already have been set forth, is also as follows:

William Reddick, the sheriff, states that the facts set forth in his return on the execution are true, and the circumstances and motives of the sale are truly set forth therein; and that he has executed and delivered deeds to Butterfield & Collins, for their clients, for the lands bought by them under their executions against James Day.

Glover states, that he has lived in Ottawa in said county since 1835, and from that time until 1839, when James Day left the state, he was well acquainted with him; that he was an extensive and careless operator in real estate, that he was well acquainted with the general situation and reputation of his titles on the twenty-ninth day of April, 1839, and that he would have considered the bid made by Mr. Hoes as a hazardous bid, without certain reliable knowledge, by reason of the uncertainty then existing relative to Day's titles; that Day's titles were then universally distrusted, so far as deponent knew the opinions of the public; that the records of the recorder's office were then imperfect, and not to be relied on, owing to the irregular manner of recording conveyances, and the imperfect indicia of the records, and for these reasons, he should have distrusted his titles, even though they should appear fair upon the records.

Norris stated that he was acquainted with Day's titles, as well as any person not immediately connected in business with him, and that his titles were in general disrepute, and very much distrusted.

Leland stated that he had lived there from 1835, knew Day, etc. and corroborated the statements of Glover and Norris; and that he was a practising lawyer in that court during that period.

Woodruff states that he was sheriff from 1836 to 1838, and corroborates the statements relative to Day's titles and the recorder's office.

John V. A. Hoes states, in addition to the facts about the sale to him by the sheriff, that he came into the state in 1846, and was acquainted with Day and the reputation of his titles; that he would not have given the sum he bid for any one tract, from reputation the titles being extremely hazardous and doubtful, and having no confidence in them.

The certificate of the recorder states, that there is nothing of record in his office showing title in James Day to three of these tracts of land; that there are title papers recorded as to four, and as to the others, there are incumbrances of record.

Hollister states, that he had compared the abstract and statements in the recorder's certificate with the recorder's books, and that it is correct.

Upon these facts the court refused the motion, to which the plaintiffs in error excepted, and tendered a bill of exceptions, and assign this decision for error.

The statute requires the clerk of each circuit court to keep a well-bound book, in which, during the term or within thirty days thereafter, he shall enter in alphabetical order, all judgments and decrees rendered by the court at the term, by the name of the person against whom it was rendered, with proper columns for the names of the parties, the date, the nature of the judgment or decree, the amount of the debt, damages, and costs, the book and page in which it is entered,...