Sapp v. Wightman

• Decision Date: 30 June 1882
• Citation: 103 Ill. 150,1882 WL 10303
• Parties: DANIEL SAPPv.MATILDA WIGHTMAN.
• Court: Illinois Supreme Court

103 Ill. 150

1882 WL 10303 (Ill.)

DANIEL SAPP

v.MATILDA WIGHTMAN.

Supreme Court of Illinois.

Filed at Springfield Mar. 28, 1882.Rehearing denied June Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Tazewell county; the Hon. N. M. LAWS, Judge, presiding.

This was a suit in ejectment, brought by Matilda Wightman, against Daniel Sapp and Oliver Goodwin, in the circuit court of Tazewell county, to the September term, 1881, to recover possession of the west half of the south-west quarter of section 24, town 24 north, range 6 west of the third principal meridian, in Tazewell county, Illinois, wherein the plaintiff, on trial by the court without a jury, recovered, and the defendant Sapp appealed.

It was admitted by the parties to the suit, upon the trial, that John Wightman owned the land in controversy in fee simple on March 22, 1859. Appellee, Matilda Wightman, to recover in the action, relied entirely upon a title she claimed to have derived by conveyance of the premises, from the master in chancery of Tazewell county, to her, as the assignee of a purchaser of the same at a sale thereof, made by such master under a decree rendered by the circuit court of Peoria county, Illinois, on March 22, 1859, in a suit for a divorce, brought by her against her husband, said John Wightman. The sale was made by said master on November 22, 1879, upon the affidavit of Matilda Wightman, presented to him, in which it was stated that eight semi-annual installments of alimony, of $250 each, for the years 1876, 1877, 1878, and 1879, due on the first days of January and July of each of said years by the provisions of said decree, from said John Wightman, were unpaid, and requesting the master to collect the same.

At the sale one James Haines, Jr., bid off the premises in controversy, and the north-east quarter of section 25, town 25, range 5 west, all situated in Tazewell county, for $2327.10, and it is recited in the deed that Haines had assigned the certificate of sale from the master to Matilda Wightman, who, on February 26, 1881, received the master's deed purporting to convey to her the premises in controversy and the quarter section of land. The decree of the Peoria county circuit court was rendered in a suit for a divorce, commenced in the Tazewell county circuit court on June 16, 1858, by Matilda Wightman against John Wightman, which suit was removed by change of venue to the circuit court for Peoria county. The decree provides that $500 per annum be allowed as alimony to the complainant, Matilda Wightman, in installments of $250 each, to be paid on the first day of January and the first day of July in each year, commencing January 1, 1860, and payable at the expiration of every six months thereafter during her natural life, the decree declaring that it was made a specific lien upon the premises in controversy and certain other designated tracts of land, all in Tazewell county, and that in the event of defendant failing to pay the complainant any part of said sum of money in the manner and at the time mentioned in the decree, then the master in chancery of Tazewell county was ordered, on the application of complainant, stating the fact of such failure by affidavit, to proceed to advertise and sell the tracts of land described in the decree, or any part thereof, to the highest bidder, for cash in hand, to raise the amount which might be then due the complainant as alimony, and to make sale in like manner from time to time afterward upon like default of payment. It was ordered that the decree be recorded in Tazewell county, and that from and after its rendition the defendant be enjoined from selling or conveying said lands, except subject to the lien thereby created upon the same. This decree, rendered March 22, 1859, was recorded March 24, 1859, in the book of record of deeds, in the recorder's office of Tazewell county. The master's deed to Matilda Wightman, dated February 26, 1881, was recorded in such office February 28, 1881.

As evidence of legal title in fee in himself, Daniel Sapp introduced a deed from John Wightman and wife to William Wightman, conveying to the latter the premises in controversy, dated March 21, 1866, and recorded March 9, 1867, and a deed from William Wightman and wife, conveying the premises to him (Sapp), dated January 5, 1867, and recorded March 8, 1867.

Mr. N. W. GREEN, and Mr. WM. DON MAUS, for the appellant:

The decree of the Peoria circuit court, in March, 1859, for the payment of money as alimony, was not a lien upon the lands of the defendant therein in Tazewell county, it being by the law then in force subject to the same restrictions as judgments at law. Chancery Code, 1845, sec. 14; Eames et al. v. Germania Turnverein, 74 Ill. 56.

The lien of a judgment of the circuit court extends only to lands within its jurisdiction, and not to lands beyond the county in which such judgment is rendered. Bustard v. Morrison, 1 Scam. 236; Durham v. Heaton, 28 Ill. 264; Kinney et al. v. Knoebel et al. 51 Id. 119; Ewing et al. v. Ainsworth, 53 Id. 465; Hart v. Wingart, 83 Id. 282.

It is the levy of an execution, not the judgment or decree, that creates the lien on land in another county. Cornwell v. Watkins, 71 Ill. 492; Worcester Nat. Bank v. Cheeney, 87 Id. 607. Messrs. PRETTYMAN & SONS, for the appellee:

The assignee of a judgment debtor, or one subject to a lien for alimony, takes the land as the debtor had it, and the lien may be enforced against the property in his hands the same as against the lien debtor. Kruse v. Scripps, 11 Ill. 90; Yates v. Benard, 38 Id. 297.

On the sale of land under a decree which is made a specific lien thereon, and its purchase and conveyance to the lienholder, the lien is merged in the fee, and the purchaser is entitled to recover against the debtor, or any person purchasing from him since the creation of the lien. Talcott v. Draper, 61 Ill. 56; Prescott v. Fisher, 22 Id. 390; Carroll v. Pollard, 24 Id. 20; 1 Washburn on Real Estate, 65.

The statutes then in force authorized the courts in granting a divorce to create liens upon real estate for installments of alimony. Acts 1859, p. 48, incorporated in Rev. Stat. 1874, p. 422, chap. 40, secs. 18, 20; Rev. Stat. 1874, chap. 22, sec. 45, and chap. 41, secs. 39, 40; Foote v. Foote, 22 Ill. 429.

That the pendency of a bill for divorce and alimony is notice lis pendens of the equities of the complainant to any subsequent purchaser from the defendant: Vanzant v. Vanzant, 23 Ill. 543; Errissman v. Errissman, 25 Id. 138; Armstrong v. Armstrong, 35 Id. 109; Draper v. Draper, 68 Id. 18.

A decree on change of venue may be filed in the county from which the venue is taken, with the clerk of the court from which the venue is changed, and from the date of such filing it will have the same effect as if originally entered there. Rev. Stat. 1874, chap. 146, sec. 34.

An execution is not necessary to be issued on a decree which authorizes the master to sell, to make the decree a lien. The decree is authority to the master. Karns v. Harper, 48 Ill. 527; Dinet v. Eigenman, 80 Id. 274; Amsby v. People, 20 Id. 159; Rev. Stat. 1874, chap. 40, secs. 17, 18, 20, and chap. 22, secs. 45, 47. Mr. JUSTICE SHELDON delivered the opinion of the Court:

The validity of plaintiff's title depends upon the force and effect of the decree rendered in the circuit court of Peoria county on March 22, 1859, as being a lien upon this land in Tazewell county. If it was not a lien upon such land situated in another county than that in which the decree was rendered, then the deed from John Wightman to William Wightman, of March 21, 1866, conveyed to the latter the full title to the land, unincumbered by any lien of the decree, and there was no interest left in the land for the master's deed to the plaintiff, of February 26, 1881, to operate upon and convey. Was, then, the decree a lien upon this land in another county?

The law in force at the time the decree was rendered was: “A decree for money shall be a lien on the lands and tenements of the party against whom it is entered, to the same extent and under the same limitation as a judgment at law.” Rev. Stat. 1845, p. 95, sec. 14. And by sec. 45, p. 98: “All decrees given in causes in equity in this State shall be a lien on all real estate respecting which such decrees shall be made, and whenever, by any decree, any party in a suit in equity shall be required to perform any act other than the payment of money, or to refrain from performing any act, the court may in such decree order that the same shall be a lien upon the real or personal estate, or both, of such party, until such decree shall be fully complied with, and such lien shall have the same force and effect, and be subject to the same limitations and restrictions, as judgments at law.” As to the lien of judgments at law the provision was: “All and singular the lands, tenements and real estate of any person against whom any judgment has been or hereafter shall be obtained, either at law or in equity, shall be liable to be sold upon execution to be issued upon such judgment, etc., and the said judgment shall be a lien on such lands, tenements and real estate from the last day of the term of court in which the same may be rendered, for the period of seven years:...