Meyer v. Mintonye

• Decision Date: 09 May 1883
• Citation: 106 Ill. 414,1883 WL 10228
• Parties: JOHANNA MEYERv.AMZI MINTONYE.
• Court: Illinois Supreme Court

106 Ill. 414

1883 WL 10228 (Ill.)

JOHANNA MEYER

v.AMZI MINTONYE.

Supreme Court of Illinois.

Filed at Springfield May 9, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Mason county; the Hon. LYMAN LACEY, Judge, presiding.

Amzi Mintonye, the appellee, brought to the November term, 1881, of the Mason circuit court, an action of ejectment, against Johanna Meyer, the appellant, for the recovery of a tract of land in said county, consisting of about two hundred acres, being the same now in controversy. There was a recovery in the circuit court, and the appellant brings the case here for review.

There is no room for controversy, nor, indeed, is there any, as to the facts in this case. They are clear, unequivocal and conclusive as to all matters they tend to prove, and hence nothing but pure questions of law are presented for determination. They are as follows:

On the 21st day of August, 1869, William Dierks purchased the land in question of Caleb W. Slade, paying about one-half of the purchase money in cash, and giving his notes, five in number, secured by a mortgage on the premises, for the deferred payments. These notes amounted in the aggregate to $5300. The first note was paid by Dierks, being the only one ever paid by him. The next three were assigned by Slade to John H. Kramer, and the fifth and last to Nancy Mintonye. On the 17th of November, 1879, Rudolf Meyer, the husband of appellant, recovered a judgment, in the Mason circuit court, against the said William Dierks for the sum of $796.25, upon which an execution was duly issued, on the 2d of the following month, and subsequently returned nulla bona. Kramer, upon a bill filed by him to foreclose the Dierks mortgage, to which Nancy Mintonye and Dierks were parties, obtained at the February term, 1880, of the Mason circuit court, a decree against Dierks, and an order for the sale of the mortgaged premises. By the decree $3791.51 was found to be then due Kramer on his three notes, and $1447.18 to Nancy Mintonye on the note belonging to her. The property was sold by the master, and purchased by Kramer, under this decree, on the 10th day of April, 1880, for $3919.72, being the amount then due him, he at the time receiving from the master the usual certificate of purchase. Rudolf Meyer died on the 17th of November, 1880, intestate, and his widow, the appellant, was duly appointed administratrix of his estate. On the 9th of April, 1881, the administratrix, without having caused her letters of administration to be filed and recorded in the circuit court of Mason county, where the judgment of Meyer against Dierks was obtained, or without having, by scire facias or otherwise, revived said judgment, sued out an alias execution thereon in the name of her deceased husband, and placed the same in the hands of the sheriff for execution, who subsequently, on the 11th of the same month, levied said execution on the land in controversy. The appellant thereupon paid to the sheriff having such execution the sum of $4232.70, for the purpose of redeeming from the sale under the Kramer decree, which sum the sheriff subsequently, on the 3d day of May, 1881, paid to Kramer, who, at the time, executed to the sheriff the usual receipt acknowledging payment of the amount by the sheriff as redemption money from the sale under the Kramer decree. The lands in controversy were, on the same day, in pursuance of previous notice, again offered for sale, under appellant's alias execution, and no one offering more than the amount paid by her to redeem from the previous sale, the premises were struck off to her, and the sheriff then and there executed to her a deed for said lands, of the date last mentioned, and thereupon returned to the clerk's office said alias execution, with the following indorsement thereon: “No part of the debt made, the property levied upon being redeemed by Johanna Meyer, administratrix of the estate of Rudolf Meyer, deceased, as judgment creditor of William Dierks, said execution was levied upon said property, and the same advertised and sold, and no greater amount than the redemption money, interest and costs of sale being bid, the same was struck off and sold to Johanna Meyer, administratrix of the estate of Rudolf Meyer, deceased, for said redemption money, interest and costs of sale, and I therefore executed her a deed for said property.”

William Dierks, for the alleged consideration of $1700, on the 9th day of July, 1881, by a good and sufficient deed, conveyed the land in controversy to appellee, who, on the 25th of the following month, commenced the present suit. Some time after its commencement, notwithstanding the redemption from his purchase at the master's sale, Kramer, with the view, we presume, of strengthening appellant's title, assigned to her the certificate of purchase executed by the master to him, and the master, on her application, executed to her, as assignee of Kramer, a deed for the premises, bearing date October 21, 1881. It was admitted by appellee, on the trial, that Mary Dierks is the wife of William Dierks, and that she is in possession of the property in controversy under a lease to her from appellant, dated May 10, 1881, and extending from that date till the 1st day of March, 1882, which lease was made in her name at her husband's request, she and her husband having lived together on the premises ever since his purchase from Slade, as heretofore stated.

Mr. H. R. NORTRUP, and Mr. W. H. CAMPBELL, for the appellant:

Appellant having paid off the prior lien of Kramer to preserve her own subsequent and subordinate lien, is, in equity, entitled to be subrogated and substituted to all the rights of Kramer. Freeman on Void Judicial Sales, sec. 49; Bentley v. Long, 1 Strob. Eq. 52; Howard v. North, 5 Texas, 316; Dufour v. Camfrac, 11 Mart. 610; Brobst v. Brock, 10 Wall. 519; Jackson v. Bowen, 7 Cow. 13; Blodgett v. Hist, 29 Wis. 182; Vattle's Heirs v. Fleming's Heirs, 29 Mo. 152.

Purchasers having paid mortgage debt are subrogated to mortgagee's rights. Kinney v. Knœbel, 51 Ill. 112; Hough v. Ætna Life Ins. Co. 57 Id. 318; Jacques v. Fackney, 64 Id. 87; Bishop v. O'Conner, 69 Id. 431. If she was subrogated to Kramer's rights, she received no greater right by the assignment than she had before. If equity would have compelled an assignment of the certificate of purchase to her by Kramer, he might legally do so, and she would be protected to the same extent as if she had acquired her rights by litigation.

Mr. O. H. WRIGHT, and Mr. JOHN W. PITMAN, for the appellee:

The execution under which the redemption was made being in the name of a dead plaintiff, was void, and the sheriff's sale and deed thereunder were nullities. Brown v. Parker, 15 Ill. 307; Scammon et al. v. Swartwout, 35 Id. 326; Durham et al. v. Heaton, 28 Id. 270; Rev. Stat. 1874, chap. 77, sec. 37.

The payment of the redemption money to Kramer extinguished the sale to him, and discharged the land from the sale, as much so as if Dierks himself had redeemed from that sale. Borders et al. v. Murphy, 78 Ill. 81; Clingman et al. v. Hopkie, Id. 152; Mulvey v. Carpenter et al. Id. 580.

Appellant is not entitled to be subrogated to the rights of Kramer. She sought to avail of a power given by statute, and lost by her own negligence and fault. In such cases equity gives no relief. 1 Story's Eq. Jur. secs. 151, 174, 175, 177.

The equities of the parties being equal, a court of equity would remain silent and passive. 1 Story's Eq. Jur. sec. 176.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

Notwithstanding the extended statement of facts, it will be perceived, by a careful analysis of them, the case itself is brought within a very narrow compass. As the land in controversy originally belonged to Dierks, through whom both parties claim title, it is clear if appellant has succeeded to his title, she acquired it either by virtue of the sheriff's deed to her of the 3d of May, 1881, or by the master's conveyance to her of the 21st of October, 1881, and if she did not acquire title by either of these conveyances, it is evident appellee has such title by virtue of Dierks' deed to him of the 9th of July, 1881, as that, outside of the Slade mortgage, is the only conveyance he has ever made of the premises in controversy. It is only necessary, therefore, to inquire whether appellant has shown title in herself by either of the conveyances to her above mentioned.

First, with respect to the sheriff's deed. It is hardly necessary to observe that the validity...