Martin v. Judd
| Decision Date | 30 September 1871 |
| Citation | 1871 WL 8088,60 Ill. 78 |
| Parties | JAMES W. MARTINv.S. CORNING JUDD. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Fulton county; the Hon. CHAUNCEY L. HIGBEE, Judge, presiding.
Messrs. MCCULLOCH & WINTERS, for the plaintiff in error.
Messrs. GOUDY & CHANDLER, and Mr. S. CORNING JUDD, in person, for the defendant in error.
This bill was to set aside a redemption of the lands in controversy, and for an injunction to restrain the plaintiff in error from taking a deed under the sale subsequently made.
The land had previously been sold as the property of Andrew Hoagland, on an execution issued out of this court, on a judgment for costs, in the case of Mansfield v. Hoagland et al., and at such sale the defendant in error became the purchaser.
The right to the relief claimed, is based on the ground that the judgment upon which the redemption was made was fraudulently obtained by the plaintiff in error, by collusion with other parties, in a court having no jurisdiction of the person of Andrew Hoagland by any service of process, and whose appearance was only entered by an unauthorized attorney, and in a case where there was, in fact, no indebtedness due from the judgment debtor to the redeeming creditor, the plaintiff in error, and therefore the judgment was absolutely void and the redemption a nullity, and because the deed, if the plaintiff in error should be permitted to obtain one under the sale thereafter made, would be a cloud on the title of the defendant in error when it should be perfected under the original sale.
The defense set up to the case made by the bill, is:
First--That there was a bona fide indebtedness due from Andrew Hoagland, the judgment debtor, to the plaintiff in error, at the time the judgment was confessed.
Second--That McCulloch, the attorney who entered the appearance of the judgment debtor in the circuit court of Peoria county, was fully and legally authorized to do so by Joseph C. Hoagland, the attorney in fact of Andrew Hoagland, and the power under which the attorney in fact acted was broad enough to include the employment of the attorney for that purpose.
Third--That the act of McCulloch in confessing the judgment on his behalf, was subsequently ratified and confirmed in all things by Andrew Hoagland, by an instrument under seal, and hence, that the judgment was valid and the redemption legal.
The land in controversy had been, for a number of years, and was still, the subject of litigation in chancery and at common law, between Mansfield and Hoagland and others, in the various courts, at the time the defendant in error purchased it at the sheriff's sale, on the execution issued out of this court. During the period that these proceedings were being had, and ever since, Andrew Hoagland resided in the State of Ohio, but the business in relation to the land had been conducted in his behalf by Joseph C. Hoagland, his attorney in fact, who was a resident of this State. McCulloch, who is charged with complicity in obtaining the alleged fraudulent judgment, was the principal attorney of Andrew Hoagland in the protracted controversy in regard to this property. He was employed by Joseph C. Hoagland on behalf of his brother Andrew, and it was through him that his fees and other expenses attending the litigation were paid. The funds with which these expenses were paid, were procured from the plaintiff in error on the credit of Andrew Hoagland. Of this, there can be no doubt; the evidence is all to that effect. The indebtedness thus created was still subsisting at the time the judgment was confessed--certainly to the amount of that judgment.
It appears that the land had been sold, and the twelve months allowed by statute for redemption had expired before the fact of the sale had become known to any of the parties acting on behalf of Andrew Hoagland, the land being situated in a different county from the one in which they resided. The fifteen months allowed in which a creditor might redeem, was also about to expire. Knowing of the indebtedness of Andrew Hoagland to the plaintiff in error, McCulloch advised that a judgment should at once be confessed so as to enable him to redeem the land, which was accordingly done. There was no time to consult with Andrew Hoagland, nor was it deemed necessary, for the reason it was believed that Joseph C. Hoagland was fully authorized and empowered to act in his stead. The debt was honestly due to the plaintiff in error, and the purpose in view was lawful. Had Andrew Hoagland, himself, been present, no one would doubt his right to appear in open court and confess a judgment expressly to enable the judgment creditor to redeem the land, if there was a bona fide indebtedness existing and due to such creditor. This would be his clear legal right, so that he could make the property pay as much of his indebtedness as possible. Phillips v. Demoss, 14 Ill. 410; Karnes v. Lloyd, 52 Ill. 113.
It would be alike lawful for the attorney to do the same thing in the name of the principal, if his authority in the premises was sufficient for that purpose.
There being a bona fide debt, in this instance, due to the plaintiff in error, and the object to be attained a statutory right, the transaction is relieved from any fraudulent intention. There was no purpose to wrong or defraud the defendant in error. The interest that he then had in the premises was the alternative right to have returned to him the amount of his bid at the sale, with the statutory rate of interest, in case this redemption was regularly effected under the provisions of this statute; or, in case the land should not be so redeemed, he would be entitled to a deed in pursuance of his certificate of purchase.
In Phillips v. Demoss, it was said that “the statute holds out no inducements for a speculation at a sheriff's sale, beyond ten per cent for the use of the purchase money, and the purchaser can set up no equitable claim beyond that where the redemption is made according to the provisions of the statute.”
There being no taint of fraud, in fact, in the transaction, the real question, and perhaps the only one that can arise that materially affects the merits of the case, is, whether the court had jurisdiction to render the judgment under which the redemption was effected.
The plaintiff in error employed James M. Rice, an attorney, to procure a judgment against Andrew Hoagland, and for this purpose the attorney filed, in the circuit court of Peoria county, a declaration in assumpsit. The declaration was filed in term time, and it does not appear that any process was ever issued in the cause. At the same term of court McCulloch appeared in open court and filed a cognovit, waiving service of process and confessing a judgment in the sum of $500...
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