Horner v. Zimmerman

• Decision Date: 30 June 1867
• Citation: 1867 WL 5210,45 Ill. 14
• Parties: HENRY H. HORNERv.CATHERINE ZIMMERMAN et al.
• Court: Illinois Supreme Court

45 Ill. 14

1867 WL 5210 (Ill.)

HENRY H. HORNER

v.CATHERINE ZIMMERMAN et al.

Supreme Court of Illinois.

June Term, 1867.

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

The facts of this case are fully stated in the opinion of the court.

Mr. WILLIAM H. UNDERWOOD, for the appellant.

1. Where a bill of review admits the justice of the amount established by the decree sought to be reviewed, the complainants should allege that they have paid it and the costs, or give a reason for omitting to do so. 2 Adams' Eq. 418; Griggs v. Gear, 3 Gilm. 11; Lube's Eq. 130; Wirner v. Blackley, 2 Johns. Ch. 488. Matter before known and susceptible of proof cannot be made the ground of a bill of review. Southard v. Russell, 16 How. 571; McDaniel v. James, 23 Ill. 408; Rittenhouse Estate, 1 Pars. S. E. C. 313, 328. On a bill of review no new evidence is admissible to facts before established by decree. Johnson v. Donnell, 15 Ill. 100; Turner v. Berry, 3 Gilm. 544; Evens v. Clement, 14 Ill. 206; Garrett v. Moss, 22 Id. 363.

2. Simple contract creditors, like Keesel and Vogel, who were not parties to the original suit, have no right to file a bill of review, which only lies by parties or privies. Sto. Eq. Pl. §§ 409, 638. Nor could they or Schulenberg and Boechler interplead, before their claims were allowed against the estate of Zimmerman, and they had exhausted their remedies at law against his estate. Armstrong v. Cooper, 11 Ill. 560; McDowell v. White, Id. 31; Ishmael v. Parker, 13 Id. 327; Greening v. Thomas, 14 Id. 271.

3. The heirs of Zimmerman had no more right than he himself would have had, if living, to set aside his deed, on the ground that it was made to defraud his creditors. Choteau v. Jones, 11 Ill. 319; Ward v. Enders, 29 Id. 524.

4. At the first term, Taylor having an interest in the mortgage and one of the notes, a strict foreclosure was improper. At the next term to which the cause was continued, Horner had acquired also Taylor's interest, and it was proved to the court that the value of the land was not sufficient to satisfy the mortgage and costs as the bill alleges, a strict foreclosure was necessary and proper to avoid the costs and expenses of a sale. Johnson v. Donnell, 15 Ill. 97; Wilson v. Geisler, 19 Id. 49; Stephens v. Bickwell, 27 Id. 444. The wife had no dower in the land as against this mortgage given for the purchase money, and was not a necessary or proper party where a strict foreclosure was prayed. Stephens v. Bickwell, 27 Ill. 446.

5. Where a suit at law or equity is continued, it is not necessary to summon the parties again into court. Coughlan v. Gutcheus, 18 Ill. 391; Warren v. McCracken, 25 Id. 103; Williams v. Waldo, 3 Scam. 265.

6. Bressler was a bona fide purchaser under the decree, and could not be affected by a reversal of the decree. The bill of review should have been filed before third persons, on the faith of the decree of the court, had purchased the land. McJilton v. Love, 13 Ill. 494; Whiting v. U. S. Bank, 13 Pet. 15; Welford's Equity, 241.

Messrs. VAN HOOREBEKE & STOKER, for the appellees.

1. The decree of strict foreclosure is void because there is no service of process on defendants John Gedney, Elizabeth Gedney and Alfred Major; nor was there any answer of said defendants filed, or appearance entered, and therefore the court had no jurisdiction, and no title could pass to the purchaser under the decree. Morris v. Hogle et al., 37 Ill. 154; Lane et al. v. Erskine, 13 Ill. 503, and cases there cited.

2. Said defendants were all indispensable parties defendant to the decree of foreclosure; yet there is no proof that either of them was ever served with process, nor is there any evidence that their appearance was entered or their answer filed to the bill of foreclosure. Montgomery et al. v. Brown et al., 2 Gilm. 585; Harvey, Admr., v. Thornton, 14 Ill. 218.

3. Strict foreclosures are not favored by courts of equity, and therefore the complainant in a bill for strict foreclosure will be held to strict and proper proofs of service, and every thing will be strictly construed against him. Weiner v. Hintz and Miller, 17 Ill. 261. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

It appears from the record in this cause, that the appellant, in 1861, exhibited his bill in chancery in the Circuit Court of Clinton county, to foreclose a mortgage executed by John Gedney to Alfred Major, and by him, with the notes it was given to secure, except one note of fifty dollars, assigned to appellant; the note not assigned to appellant had been assigned to one J. M. D. Taylor. The amount held by appellant exceeded two thousand dollars. At the March Term, 1862, of said court, a decree was passed in favor of appellant, reciting that all of the defendants had been served with process ten days before the first day of the term of the court, that they were ruled to answer by the next morning, and, on default of answers, it was ordered, adjudged and decreed that the bill be taken as confessed against the defendants, and the cause referred to a special master to compute the amount due to the several parties in interest, who reported there was due to appellant on the notes, with interest, the sum of $2,392.42, and to Taylor $65.33, making in all the sum of $2,457.75, which report was approved, and a sale of the premises ordered if the money was not paid in thirty days after the entry of the decree, and that the proceeds be paid to appellant and Taylor in proportion to the amount of their respective claims, and the cause continued to the next term.

At the next term (August) appellant entered his motion, he having purchased Taylor's interest in the decree, to change the decree of the previous term to a decree of strict foreclosure, and, on evidence being heard by the court that the premises were worth less than the amount found due to appellant, and the amount not having been paid, the court ordered a strict foreclosure, and required the master in chancery to convey the premises to appellant, then complainant, and the court further ordered that the sheriff put the complainant in possession of the premises.

Among the defendants to the bill of foreclosure was Melchior Zimmerman, to whom Gedney had conveyed the premises after he had mortgaged them to Major. It appears that soon after the decree of strict foreclosure, complainant sold and conveyed the premises for a full consideration to one Paul Bresler.

At the August Term, 1864, Catherine Zimmerman, the widow, and the infant heirs at law of Melchior Zimmerman, who had died since the decree, and Henry Kiesel and Peter Vogel, exhibited their bill in the Clinton Circuit Court to review the decree rendered in favor of appellant, for a strict foreclosure,-- Kiesel and Vogel alleging they were creditors of Zimmerman, and the Zimmermans alleging that it nowhere appears in the record that Melchior Zimmerman had been served with process in the foreclosure cause, and had never appeared to that action, and that the facts stated in the bill did not warrant a strict foreclosure, and that the bill did not show why complainant had not made the money out of Gedney, the maker of the notes; and that it does not charge that the mortgaged premises were insufficient, or not more than sufficient to pay the debts claimed in the mortgage, and “the other liens,” and that the bill does not charge that Gedney, or any of the other defendants were insolvent; and they charge that at the time when the last amended decree was passed, the premises were worth from $4,000 to $5,000, and if they had been subjected to a sale, as by the original decree directed, and as prayed by complainant in his bill of foreclosure, they would have brought the amount of $4,000, and over, a sum sufficient to have paid complainant and all other creditors, and leaving a sum to be distributed among the complainants in the bill of review, the widow and heirs of Melchior Zimmerman. Kiesel and Vogel allege that Melchior Zimmerman, and Catherine, his wife, conveyed these premises by warranty deed, on the 10th of January, 1861, to one John J. Muller; and they allege such conveyance was void for fraud, and made to hinder and delay and defraud the creditors of Zimmerman, of whom they were a part, and pray that the conveyance may be set aside, and the premises deemed to be in the heirs of Zimmerman, for the benefit of creditors. Muller was also made a defendant.

Summons issued against appellant, and Bressler and appellant answered the bill, denying that Catherine Zimmerman had any interest in the premises, for that she, with her husband, had conveyed them to John J. Muller, by deed dated January 10, 1861, and makes an exhibit of a certified copy of the deed from the record; denies knowledge of any indebtedness as charged; denies that he sold the premises to Bressler for $4,000, but says he sold them and another piece of valuable property adjoining, to him, for that sum; avers that the writ of summons was served on Melchior Zimmerman, and the service indorsed thereon by the sheriff; avers that he did bring suit against Gedney on the notes, and failed to collect any thing; denies that the premises are worth $4,000 or $5,000, but avers that by proof taken to obtain the decree of strict foreclosure, they were shown to be worth less than the mortgage debt; as to the allegation in the amended bill, he...