Guiteau v. Wisely

• Decision Date: 30 June 1868
• Citation: 47 Ill. 433,1868 WL 5016
• Parties: BENJAMIN F. GUITEAU.v.JAMES L. WISELY.
• Court: Illinois Supreme Court

47 Ill. 433

1868 WL 5016 (Ill.)

BENJAMIN F. GUITEAU.

v.JAMES L. WISELY.

Supreme Court of Illinois.

June Term, 1868.

APPEAL from the Circuit Court of Randolph county; the Hon. SILAS L. BRYAN, Judge, presiding.

The facts of this case, and the questions presented by the record, fully appear in the opinion of the court.

Mr. GEORGE W. WALL, for the appellant.

I insist that the judgment creditors knew of the existence of the mortgage, as shown by their letter, and that the unrecorded mortgage was the prior lien. National Bank v. Godfrey, 23 Ill. 579; Martin v. Knox College, 32 Ill. 165.

The effect of the reversal was to place the parties in statu quo, and if the plaintiff in the execution was the purchaser, the sale would be set aside. McJilton v. Love, 13 Ill. 494.

The plaintiff was the purchaser, but he assigned his certificate of purchase. We insist the assignee acquired no greater right than the purchaser. Rev. Stat., chap. LVII, page 303. Messrs. WATT & MICHAN, for the appellee.

The plaintiffs in the execution had no notice of the mortgage until after they had levied their execution, and their lien having attached, no subsequent notice could divest it. Whatever is done under an erroneous judgment, so long as it remains unreversed, is valid and binding, so far as strangers are concerned. Bank of the United States v. Bank of Washington, 6 Peters, 15.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of ejectment, in the Randolph Circuit Court, brought by Benjamin F. Guiteau against James L. Wisely, and tried by the court without a jury, on the following facts:

The plaintiff was, on the 30th of March, 1869, owner of the land in question, and on that day sold it to James McDill, by warranty deed, which was recorded June 1st, 1860, and to secure payment of $430, due him for purchase money, took back from McDill, on the same day, a mortgage, which was not recorded until Feb. 7th, 1861. At September term, 1860, of the Randolph Circuit Court, J. & R. Stevenson, for the use of L. A. C. Brown, recovered a judgment in an action of assumpsit, against McDill for $103, on which judgment an execution issued, and on the 22d of January, 1861, it was levied on this land.

On the 28th of January, 1861, J. &. R. Stevenson, who then lived at Oden, wrote the following letter to the plaintiff below, who then lived at Du Quoin:

“SIR:--We have a judgment against Jas. McDill, and have levied on a tract of land, 80 acres, which Mr. J. Kerr informs us you sold to McDill, and that you hold a mortgage, unrecorded, on the same. This land is E, S. W., Sec. 11, T. 4, S. R. 5, W. You have Nos. of land levied on and to be sold on 16th of February, 1861, at Chester Court House, between the hours of 9 A. M., and setting sun.

If the above land is the same you have mortgage on, you had better attend to it and save yourself, as it will be sold on that day.

We have notified you of the sale, as we do not wish any person to lose by our action.”

That on the 16th of February, 1861, the land was sold under the execution and purchased by J. & R. Stevenson, for the amount of their judgment and costs, and the sheriff gave them a certificate of purchase.

James McDill died March 7th, 1862, intestate, and at March term, 1862, of the Probate Court, John Hodson was granted letters of administration.

At November term, 1863, of the Supreme Court, the judgment of J. & R. Stevenson v. McDill was reversed, a writ of error having been been sued out by the administrator of McDill.

That afterwards, the plaintiff, Guiteau, filed his bill in the Randolph Circuit Court for foreclosure of his mortgage, and having obtained a decree, the land was sold by the master in chancery and purchased by plaintiff, Guiteau, and not having been redeemed within fifteen months, was conveyed to plaintiff, Guiteau, by the master, and which deed was executed and April 11th, 1865.

That the certificate of purchase given at the sheriff's sale, February 16th, 1861, was by the said J. & R. Stevenson, assigned March 14,...