Sutherland v. Long

• Decision Date: 08 June 1916
• Docket Number: No. 10325.,10325.
• Citation: 273 Ill. 309,112 N.E. 660
• Parties: SUTHERLAND v. LONG et al.
• Court: Illinois Supreme Court

273 Ill. 309

112 N.E. 660

SUTHERLAND

v.LONG et al.

No. 10325.

Supreme Court of Illinois.

April 20, 1916.

Rehearing Denied June 8, 1916.

Appeal from Circuit Court, Knox County; Geo. W. Thompson, Judge.

Bill by William A. Sutherland against James C. Long and others. Decree for defendants, dismissing for want of equity, and complainant appeals. Reversed and remanded, with directions to enter a decree awarding plaintiff the proceeds of the condemnation of the property.

Dunn, J., dissenting.R. D. Robinson and Moreland & Moreland, all of Galesburg, for appellant.

M. J. Daugherty and Roy M. Marsh, both of Galesburg, for appellees.

COOKE, J.

David J. McMullen owned lots 1 and 2, in block 105, in the Second Southern addition to the city of Galesburg. He and his wife mortgaged these premises, and having defaulted in the payment of the debt the mortgage was foreclosed. At the foreclosure sale, on September 9, 1911, William A. Sutherland, appellant, a stranger to the mortgage, purchased the property for the sum of $1,900 and received a certificate of purchase from the master in chancery. McMullendid not redeem within the year allowed by the statute. In the meantime appellant had redeemed the property from two tax sales, one for the general taxes and another for a special assessment, and had paid the general taxes for two years and two special assessments. The receipts for these payments were not deposited with the master or sheriff. Prior to the foreclosure of the mortgage the Canton Coal Company had secured a judgment against McMullen for the sum of $312.89, which judgment had been assigned to John Scripps. After the expiration of 12 months from the date of the foreclosure sale Scripps paid to the sheriff of Knox county the amount necessary to redeem, sued out an execution on his judgment, and the property was advertised for sale. The sheriff also filed a certificate of redemption with the recorder. On the day set for the sale under the Scripps execution appellant came to the office of the sheriff and in the presence of the attorney for Scripps informed the deputy in charge that he wanted to pay off the Canton Coal Company's judgment-that he wanted to redeem from that judgment. It is apparent that the purpose of appellant was to satisfy the Canton Coal Company's judgment, and thus remove that judgment as a basis for redemption from the sale at which he had purchased the premises. The Scripps redemption money had not been paid to appellant. It had been retained by the sheriff and was then in his possession. Acting upon the advice of the deputy sheriff as to the proper method to accomplish his purpose, appellant thereupon gave to the sheriff his check for the amount of the Canton Coal Company's judgment, interest, and costs. At the same time the sheriff executed his check, payable to appellant, for the amount of the redemption money which had been paid by Scripps. This check was handed to appellant, with the direction that he indorse his name on the back. This he did, and the check executed by the sheriff and the one executed by the appellant were then delivered by the sheriff to the attorney for Scripps. The sheriff thereupon executed a receipt to appellant for the sum of $2,425.66, which recited that it was in full of the redemption money and interest, and of the Canton Coal Company's judgment, interest, and costs. The sheriff also released the levy and returned the execution fully satisfied, stating in the return thereon that he had received from appellant the full amount of the redemption money and interest, and judgment, interest, and costs, making a total of $2,425.66. Scripps thereafter executed and delivered to appellant a written assignment of the Canton Coal Company's judgment. After the expiration of the full period for redemption appellant presented his certificate of purchase to the master in chancery and demanded a deed. The master refused to issue a deed upon the ground that the record disclosed that a redemption had been had from the sale to appellant and that his certificate of purchase was therefore void.

Appellant thereupon filed this bill in the circuit court of Knox county, making the master in chancery and various others, as well as McMullen and his wife, defendants, to require McMullen to repay him the money expended for the certificate of purchase and the Canton Coal Company's judgment and for taxes, or to require the master in chancery to execute and deliver to him a master's deed to the premises in question. During the pendency of the suit the property, which had remained in the possession of McMullen, was condemned as part of the right of way of the Rock Island Southern Railroad Company, and the value of the property was fixed in the condemnation proceeding at the sum of $3,500. The order of the court provided that this amount, when paid, should be paid to the treasurer of Knox county, to be held by him in lieu of the premises pending the event of this suit. The money was so paid to the county treasurer, and a supplemental bill was filed, praying that the money be decreed to be the property of appellant, or that appellant be reimbursed for the amounts expended by him. Upon the hearing a decree was entered dismissing the bill for want of equity, and this appeal has been perfected from that decree. Before the entry of the decree David J. McMullen died testate, devising all his property to his wife, Mary E. McMullen, who is the principal appellee here, and the only one to file a brief.

The facts as above detailed stand uncontradicted in the record, as the cause was submitted upon the evidence offered on the part of appellant. The position of appellee is that at the moment Scripps paid the redemption money to the sheriff the redemption was complete, the certificate of purchase became of no effect, and appellant had no further interest of any kind in the premises; that appellant, then a stranger to the transaction and not realizing the effect of his action, through ignorance of the law, voluntarily paid off the indebtedness, leaving the title in McMullen free of all incumbrances; and that equity will not relieve from the effects of a mistake of law. Appellant contends that a valid redemption was not made, but that, even if it be held that the redemption was complete before he paid off the Canton Coal Company's judgment, equity will afford relief and will at least require the repayment of the amounts he has expended. If, as appellee contends, McMullen, although he had failed to redeem and had lost all interest in the property, except the right to have it pay as much of his indebtedness as possible, and as the holder of the naked title pending the making of a deed by the master or sheriff, could reap the full benefit of this transaction and retain the property freed of all incumbrances without having himself paid a cent of his indebtedness, then, indeed, the result would be to work a great injustice to appellant and to give an unconscionable advantage to McMullen. Such a result would not be tolerated in a court of conscience, unless made inevitable by settled and unalterable rules of law.

It is unnecessary to determine whether appellant is entitled to general equitable relief, as we are of the opinion the master's certificate...