Hernandez v. Drake

• Decision Date: 30 September 1875
• Citation: 81 Ill. 34,1875 WL 8814
• Parties: MARTIN E. HERNANDEZv.JOHN B. DRAKE.
• Court: Illinois Supreme Court

81 Ill. 34

1875 WL 8814 (Ill.)

MARTIN E. HERNANDEZ

v.JOHN B. DRAKE.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

Messrs. ELDRIDGE & TOURTELLOTTE, for the appellant.

Messrs. AYER & KALES, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

In May, 1864, Eber V. Haughwout and others, described as partners, brought suit by attachment in the circuit court of Cook county, against appellant, who then resided on the Island of Cuba. An affidavit was filed in the clerk's office, stating an indebtedness, and that appellant was not a resident of the State. A writ of attachment was issued and levied on the real estate in controversy. There being no personal service, on the return of the writ the clerk of the court caused a notice under the statute to be published in a weekly newspaper in the city of Chicago, for four weeks successively, according to the requirements of the statute. On the 11th day of October, after the commencement of the suit, a judgment was obtained against appellant for $4492, and the costs of suit.

On the day the judgment was rendered, a special writ of fieri facias was attempted to be issued by the clerk, commanding the sheriff to make sale of the property levied on under the writ of attachment. But whilst it was in all other respects regular, it lacked the signature of the clerk. It was afterwards returned by the sheriff with an indorsement that, on the 3d day of November, 1864, he had sold the property described in it, after advertising the same according to law, to Haughwout, one of the plaintiffs, for the amount of the judgment and costs. The purchaser received a certificate of purchase, which was recorded on the 7th day of December, 1864, and after the time had expired, and no redemption having been made, the sheriff executed to the purchaser a deed of conveyance.

About four years after this sale by the sheriff, the imperfection in the execution having been discovered, on the 5th of January, 1869, the plaintiff's attorney filed a motion in the court to set aside the sale, which motion was allowed and an execution was awarded. A new writ was issued on the 13th of the same month, under which the property was again sold by the sheriff on the 11th of February, 1869, and was again purchased by the same plaintiff for the amount of judgment, interest and costs. He received a certificate of purchase which he, in March following, assigned to appellee, Drake, for the sum of $3000, and executed to him a warranty deed for the premises a few days afterwards. This deed was recorded on the 3d of April, 1869. The premises not having been redeemed, on the 12th of May, 1870, Drake received a sheriff's deed, as the assignee of the purchaser, and it was filed for record on the next day. Drake then took possession of the property, and caused it to be fenced, and has since made other improvements on it, and has paid the taxes assessed on it since receiving his deed.

Appellant filed a bill to the September term, 1871, of the circuit court of Cook county, to set aside and annul the judgment and all proceedings under it, and to compel Drake to convey the property to appellant. The bill charges fraud, and that there were such irregularities in the attachment proceedings as rendered the judgment and sale under it void, and that the title was not legally transferred to Drake, or in anywise affected. On a hearing in the court below, the bill was dismissed, and complainant brings the record to this court on appeal, and asks a reversal.

The charge that the attachment suit was fraudulently brought without any grounds to justify it, is not pressed in this court, nor do counsel seem earnest in urging that Drake was a fraudulent purchaser. But even if they were so pressed, we think the record fails to show that he was not a purchaser in good faith, whether or not he is chargeable with notice of the errors in this record. We deem it unnecessary to discuss the evidence on the question of actual fraud, as to him, as it is insufficient to prove the charge.

An examination of the proof shows no defect in the affidavit on which the writ of attachment issued; the writ was in form; the notice of publication conformed to the statute, and the judgment finds that notice was given. Nor is any objection made to any step that was taken to confer jurisdiction, except that the notice was published in a religious weekly newspaper, and that the certificate of publication was insufficient.

In the case of Kerr v. Hitt, 75 Ill. 51, it was held that the “Legal News,” a weekly law publication, was such a newspaper as was required by the statute. What was there said applies with full force to this case, and renders further discussion of this question unnecessary.

The evidence shows that the printer certified he had published the notice for four successive weeks, and Reid swears that it appeared to have been published eight or nine weeks. If this evidence is true, and it is not contradicted, then the publication was amply sufficient. If the first publication was on the 9th of June, and the last was on the 31st of July, and it was inserted in each weekly publication between these dates, the requirement of the law would be fully complied with, as the latter insertions after the first four could not possibly do any harm. It is only necessary to state the proposition, for all to see and fully comprehend its truth. It then follows, that as there was...