Ryhiner v. Frank
| Decision Date | 31 January 1883 |
| Parties | FREDERICK C. RYHINERv.JOSEPH FRANK et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Effingham county; the Hon. THOMAS S. CASEY, Judge, presiding.
Mr. J. N. GWIN, and Mr. W. B. COOPER, for the appellant:
The Statute of Limitations as to the time of taking out a sheriff's deed did not run against the deed, as the judgment and sale were made prior to the passage of the act of 1872. Rucker v. Dooley, 49 Ill. 383.
A bona fide purchaser of property, who has failed to record his deed until after a judgment has been recovered against his vendor, but who records it prior to the sale under the judgment, can hold it against the purchaser at the execution sale. Davis v. Ownby, 14 Mo. 170; Valentine v. Havener, 20 Id. 133; Stillwell v. McDonald, 39 Id. 282; Porter v. McDowell, 43 Id. 93; Read v. Owensby, 44 Id. 204; Black v. Long, 60 Id. 81; Chapman v. Sims, 53 Miss. 154; Pettingill v. Devlin, 35 Iowa, 353
No difference exists between a purchase at private sale and one at a sheriff's sale. Notice to an agent or attorney is notice to principal. Robinson v. Rowan, 2 Scam. 429; Williams v. Tatnall, 29 Ill. 553.
Messrs. WOOD BROTHERS, and Messrs. GILMORE & WHITE, for the appellees:
The certificate of purchase of F. W. Crœnbold, assigned to plaintiff, and the sheriff's deed thereon, were null and void. Rev. Stat. chap. 77, sec. 30; Potter's Dwarris on Statutes and Const. 73, 471-2; Brunson v. Kinzie, 1 How. 316; Green v. Biddle, 8 Wheat. 75; Story v. Furman, 25 N. Y. 233; Morse v. Gould, 11 Id. 281.
The title of Frank was prior and superior to that of plaintiff. Harris v. Cornell, 80 Ill. 54; Hernandez v. Drake, 81 Id. 34; McHaney v. Schenk, 88 Id. 357.
His rights under his deed, by relation, were fixed when the judgment lien attached. Notice could not destroy rights already accrued.
This was an action of ejectment, by Ryhiner, against Frank, to recover possession of lots 1 and 2, in block 1, in central Effingham, wherein there was judgment in favor of the defendant, and the plaintiff appealed.
One Newbanks was the common source of title. On January 20, 1875, John G. McCoy became the purchaser of the lots at a trustee's sale of them, under a trust deed thereof, executed by Newbanks on December 2, 1872, McCoy receiving the trustee's deed. On March 30, 1875, McCoy and wife executed a trust deed to A. F. Bandelier, trustee, to secure the payment of $1416.35, under which trust deed, Ryhiner, the plaintiff, became the purchaser of the lots on September 20, 1878, at a trustee's sale of them, made by Bandelier, the trustee. This trustee's deed is one source from which plaintiff claims title. The other source is a judgment against Newbanks in favor of one Crœnbold, rendered on March 6, 1871, which was prior to Newbanks' said trust deed of December 2, 1872, an execution sale of the lots under the judgment, on August 7, 1871, to Crœnbold, and a sheriff's deed of them, of date December 21, 1878, to Ryhiner, the plaintiff, assignee of the certificate of purchase. Defendant claims title under a judgment in favor of Frank Brothers, against McCoy, rendered March 18, 1875, an execution sale thereunder of the lots to Frank, the defendant, on December 11, 1875, and a sheriff's deed of the lots to him, made on August 2, 1878.
Plaintiff's claim of title under the Crœnbold judgment against Newbanks evidently must fail. His sheriff's deed thereunder, dated December 21, 1878, was based on the sheriff's sale made August 10, 1871, such sale having been seven years, three months and upward, prior to the taking of the deed, and five years, ten months and upward, from the expiration of the time of redemption, it having expired November 10, 1872. The statute approved March 22, 1872, and which went into effect July 1, 1872, provides that the purchaser of real estate at execution sale shall be entitled to a deed at any time within five years from the expiration of the time of redemption, and if the time of redemption should have elapsed before the taking effect of the act, that a deed might be given within two years from the time the act took effect; and the statute provides further, that when such deed shall not have been taken within the time limited by the act, the certificate of purchase shall be null and void. (Laws, 1871-2, p. 510, sec. 30.) The sheriff's deed not having been taken within the time limited by the statute, the certificate of purchase on which the deed was given became null and void, and the deed is of no effect.
The objection is not valid that the statute fixes a limitation for taking out the deed, different from that declared by this court in Rucker v. Dooley, 49 Ill. 383, and that...
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