Dobbins v. the First Nat'l Bank of Peoria.

• Decision Date: 31 March 1885
• Parties: MARY C. DOBBINS et al.v.THE FIRST NATIONAL BANK OF PEORIA.
• Court: Illinois Supreme Court

112 Ill. 553

1884 WL 13860 (Ill.)

MARY C. DOBBINS et al.

v.THE FIRST NATIONAL BANK OF PEORIA.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.Rehearing denied March Term, 1885.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Second District;-- heard in that court on appeal from the Circuit Court of Peoria county; the Hon. JOHN BURNS, Judge, presiding.

On the 16th of March, 1871, Thomas S. Dobbins recovered a judgment in the circuit court of Peoria county, against Henry T. Baldwin, and others. An execution was issued upon this judgment within the year, and returned no property found. On the 8th of April, 1872, an alias execution was issued on said judgment, and, on the 17th of the same month, levied by the sheriff on the premises in controversy, but remained in the hands of the sheriff, without any action being taken under it, until November 7, 1878, when it was returned with the indorsement, “no part satisfied.” The sheriff, on the 16th of January, 1879, sold the premises in question, under a venditioni exponas, sued out November 16, 1878, to Gilbert G. Gibbons. The latter assigned the certificate of purchase to Mary C. Dobbins, who in due time, to-wit, on the 31st of May, 1880, received a sheriff's deed for the premises. Prior to this, however, to-wit, on the 2d of March, 1878, Richard A. Culter recovered a judgment in the Peoria circuit court, against said Baldwin and others, for $2709.97, and costs, which was assigned, for value, to the First National Bank of Peoria, the defendant in error. An execution was issued on this judgment, April 29, 1878, which being returned unsatisfied, an alias execution was issued on the 31st of December, 1880, and placed in the hands of the sheriff for execution. On the 5th of January, 1881, this alias execution was levied by the sheriff on the premises in question. Thereupon the bank, together with others, filed the present bill, setting up, among others, the foregoing facts, and praying, among other things, that “said venditio rei exponas, said certificates of purchase, and said sheriff's deeds to Mary C. Dobbins, be each set aside as to complainant's said judgment,” and that she be enjoined, etc. Other matters and interests are set up in the bill, but they are not material to a decision of the main question upon which the case turns, and need not, therefore, be noticed. On the hearing, the court sustained the title of the bank, and entered a decree accordingly, which was affirmed on appeal to the Appellate Court.

Messrs. HOPKINS & HAMMOND, for the plaintiffs in error:

At the date of the sale upon the venditioni exponas, under the Dobbins judgment, lapse of time had not extinguished the right to make title under that judgment, which should be paramount to the lien of the junior judgment.

The act of 1872, where a levy has been made within seven years, authorizes a sale within one year after the seven years shall have expired. Its effect is to extend the lien, provided a levy has been made within the proper time. That act is new legislation, covering the entire subject of judgments, etc., embraced in the law of 1845. It is a repeal of the old and an enactment of new rules governing the entire subject.

The statute is one affecting the remedy, merely, and not the rights of the parties to the suit, and applies to judgments existing at the time of its adoption, as well as to subsequent judgments. It was in force when this levy was made, and therefore governs the rights and remedies acquired by the levy. The act is not an ex post facto law, ( Wilson v. Railroad Co. 64 Ill. 546,) and a retrospective law which does not impair the obligation of contracts, or partake of the nature of ex post facto laws, is not prohibited. Satterlee v. Matthewson, 2 Pet. 380.

The tax title is not invalid by reason of any insufficiency in the affidavit of notice, (Laws 1872, secs. 216-218, p. 51,) and the purchaser could not be affected by subsequent conditions imposed.

The court below erred in setting aside and cancelling said tax deed and tax title of Mary C. Dobbins, without requiring repayment of the taxes for which said lots were sold and deeded. Phelps v. Harding, 87 Ill. 442; Durfee v. Murray, 7 Bradw. 233.

Messrs. PUTERBAUGH & PUTERBAUGH, for the defendant in error:

A pending levy of an execution issued on the judgment made during the existence of the lien, will not operate to continue the lien of the judgment beyond the statutory period of seven years. Tenney v. Hemenway, 53 Ill. 97; Conwell v. Watkins, 71 Id. 488; Gridley v. Watson, 53 Id. 186; James v. Wortham, 88 Id. 70.

The statute in force at the date of the judgment must govern as to the extent of the lien, and within what period it may be enforced. Beasley v. Spencer, 25 Ill. 217; Dickson v. Railroad Co. 77 Id. 331; Garrison v. People, 87 Id. 96; Hyman v. Bayne, 83 Id. 256.

A statute is to operate in future only, unless it clearly appears that it was the intention of the legislature to make it retrospective; and this intention must be manifested by clear, unequivocal expressions. Thompson v. Alexander, 11 Ill. 54; Betts v. Bond, Breese, 223; People v. Thatcher, 95 Ill. 109; People v. Peacock, 98 Id. 172; Garrett v. Wiggins, 1 Scam. 335; Rhinehart v. Schuyler, 2 Gilm. 473; Bruce v. Schuyler, 4 Id. 221; Marsh v. Chesnut, 14 Ill. 223; Conway v. Cable, 37 Id. 82.

A party having a judgment or execution which is a lien on property, has no legal right to extend the time for its collection, to the injury of other creditors. A judgment creditor so situated has no right to place himself in a position that he can not proceed for its collection, and at the same time hold his lien, so as to prevent others from proceeding to satisfaction. Ross v. Weber, 26 Ill. 223; Davidson v. Waldron, 31 Id. 120.

A subsequent statute can not operate to change the rights of the parties under a decree rendered before the new act took effect. Parmelee v. Lawrence, 48 Ill. 331; 44 Id. 405.

The repeal of a statute does not affect rights acquired under the repealed statute. Naught v. O'Neal, Breese, 29.

Independent of the saving clause in the act of 1872, we further claim that the statute of 1845, in force at the date of the judgment, issue of the execution, and levy, must govern as to the extent of the lien, and within what period it may be enforced. Beasley v. Spencer, 25 Ill. 217; Dickson v. Railroad Co. 77 Id. 331; Garrison v. People, 87 Id. 96; Hyman v. Bayne, 83 Id. 256.

Where a notice of a tax sale is not given in the manner required by the constitution and by the statute, a court of chancery will interfere in behalf of a party interested as owner, or who is in possession, to remove a cloud occasioned by an invalid tax sale, under which title is claimed. Barnard v. Hoyt, 63 Ill. 341; Gage v. Rohrbach, 56 Id. 262; Gage v. Billings, Id. 268; Reed v. Tyler, Id. 288.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This cause was heard and determined at the September term, 1883, of this court, and an opinion filed therein May 19, 1884, reversing the judgment of the Appellate Court affirming the decree. A petition for a rehearing having been granted in the case, it is again before us for consideration. With the construction given to the acts of 1845 and 1872, as expressed in the opinion heretofore filed in this case, we are entirely satisfied, and we therefore simply reproduce so much of the opinion as relates to that subject, which is as follows:

“The statute of 1845 provided that every judgment in any court of record “‘shall be a lien’ on the lands, tenements and real estate of every person against whom judgment has been or hereafter shall be obtained, ‘from the last day of the term of the court in which the same may be rendered, for the period of seven years: Provided, that execution be issued at any time within one year on such judgment; and from and after the said seven years the same shall cease to be a lien on any real estate, as against bona fide purchasers or subsequent incumbrancers, by mortgage, judgment or otherwise.’ Under this statute, it was held that a levy of an execution upon the lands of a defendant, made within seven years, did not extend the lien upon the land beyond the seven years, and that a purchaser at a sale made under such levy, but after the seven years, took the property subject to the rights of intervening purchasers and incumbrancers. In Tenney v. Hemenway, 53 Ill. 97, the court said: ‘If the levy could create such results, (extension of the lien,) how long would it continue?’ The same doctrine was recognized in Conwell v. Watkins, 71 Ill. 488, and James v. Wortham, 88 Id. 69.

In 1872 the statute of 1845 was repealed, and instead another was enacted, providing, in section 1, ‘that a judgment of a court of record shall be a lien on the real estate of the person against whom it is obtained, situated within the county for which the court is held, from the time the same is rendered or revived, for the period of seven years, and no longer. * * * When execution is not issued on a judgment within one year from the time the same becomes a lien, it shall thereafter cease to be a lien; but execution may issue on such judgment at any time within seven years, and shall become a lien on such real estate from the time it shall be delivered to the sheriff to be executed.’ Section 6 provides that no execution shall issue upon any judgment after the expiration of seven years from the time the same becomes a lien, except upon revival of the same by scire facias; but real estate levied upon within said seven years, may be sold upon a venditio rei exponas, at any time within one year after the expiration of said seven years.

Section 1 of the act of 1872, and section 6 of that act, must be construed together. Considering these sections together, we think it was the intention of the legislature to so change the law, that where a levy is made within seven years from the date of the judgment, a sale of the land may be made...