The Farmers' Nat'l Bank of Bushnell v. Sperling

• Decision Date: 30 March 1885
• Citation: 113 Ill. 273
• Parties: THE FARMERS' NATIONAL BANK OF BUSHNELLv.THEODORE F. SPERLING.
• Court: Illinois Supreme Court

113 Ill. 273

THE FARMERS' NATIONAL BANK OF BUSHNELL

v.THEODORE F. SPERLING.

Supreme Court of Illinois.

Filed at Springfield Mar. 30, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of McDonough county; the Hon. S. P. SHOPE, Judge, presiding.

Messrs. WHEAT & IMES, and Messrs. TUNNICLIFF & BACON, for the appellant:

The bill charges notice only at the time of the sale. The notice, to avail, must be before or when the judgment was recovered. Massey v. Westcott, 40 Ill. 160.

The records here showing title in Theodore and Abram B. Sperling, jointly, and the possession of Theodore being consistent with his own, and not inconsistent with Abram's, title, was no notice to any one of his having purchased Abram's interest. Stone v. Cook, 79 Ill. 424; Fassett v. Smith, 23 N. Y. 252; Richardson v. Haynes, 1 La. Ann. 286; Bodrean v. Bergeson, 4 Id. 84; Rodgers v. Hussey, 36 Iowa, 664; Reynolds v. Ruckman, 35 Mich. 80; Atwood v. Bearst, 47 Id. 72; Wade on Law of Notice, secs. 297, 298; Emmons v. Murray, 16 N. H. 286; Plumer v. Robertson, 6 S. & R. 179; Palmer v. Bates, 22 Minn. 522.

As to when notice to an agent, trustee, etc., affects his principal, see Fairfield Savings Bank v. Chase, 72 Maine, 226; McCormick v. Wheeler, 36 Ill. 114; Choteau v. Allen, 70 Mo. 290; Ford v. French, 72 Id. 250; Horseman v. Girard Association, 81 Pa. St. 256; Pringle v. Dunn, 37 Wis. 449.

Appellee failed to pay the full purchase money to the extent of $400, and interest thereon.

The defendants in the execution were necessary parties. Rorer on Judicial Sales, secs. 1145-1147; Prentice v. Kimball, 19 Ill. 320.

Messrs. NEECE & BLAZER, for the appellee:

As to an appeal lying to this court, see section 90 of the Practice act; section 8 of the Appellate Court act; Sedgwick v. Johnson, 107 Ill. 385; Trustees of Schools v. Potter, 108 Id. 442; Umlauf v. Umlauf, 103 Id. 657; Talcott v. Schule, 95 Id. 201; Baber v. Railroad Co. 93 Id. 342; Walker v. Malin& Co. 94 Id. 596; Carlin v. Fox, 98 Id. 146; Peck v. Herrington, 104 Id. 88.

Open and notorious possession of land is sufficient to put subsequent purchasers and incumbrancers upon inquiry as to the rights of the occupant. Keys v. Test, 33 Ill. 316; Truesdale v. Ford, 37 Id. 210; Reeves v. Ayers, 38 Id. 418; DeWolf v. Pratt, 42 Id. 198; Warren v. Richmond, 53 Id. 52; Wade on Law of Notice, 116, 120.

The objection for want of parties is for the first time raised in this court upon appeal, when, we think, it was the duty of appellant, if such is the case, to have raised that question in the court below, by either demurrer, plea or answer. If any defect such as is urged, does in fact exist, it is manifest upon the face of the bill, and hence should have been raised by demurrer interposed for that purpose. Story's Eq. Pl. sec. 75; 1 Daniell's Ch. Prac. 285, 286; Conwell v. Watkins, 71 Ill. 488; Allen v. Woodruff, 96 Id. 11.

The omission of the judgment debtors as parties could not prejudice appellant, and as their rights were not affected by the decree, they were not indispensable parties. Manf. Co. v. Daggett, 84 Ill. 557; Walsh v. Wright, 101 Id. 178; Story's Eq. Pl. secs. 76, 77, and notes.

The principle of caveat emptor applies to judicial sales, unless the party is misled by fraud. Finley v. Mayer, 42 Ill. 350; Bishop v. O'Connor, 69 Id. 431; Roberts v. Hughes, 81 Id. 130; Vanscoyoc v. Kimler, 77 Id. 151; Holmes v. Shaver, 78 Id. 578; Bassett v. Lockard, 60 Id. 164.

The principle is well established that a levy on personal property under a fi. fa. is prima facie a satisfaction of the debt. Trenary v. Cheever, 48 Ill. 28; Smith v. Hughes, 24 Id. 270.

Abram B. was to pay the whole of the $800 to the Bulls, and each of them the balance, $2700, so that Abram's note properly paid the amount it called for. Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

Theodore F. Sperling and Abram B. Sperling in the fall of 1868 purchased the north-west quarter of section 9, township 7, north, range 3, west, in McDonough county, of Charles Chandler. In the spring of 1869 they entered into possession, and commenced making improvements thereon, and they continued to occupy and improve and cultivate it, as tenants in common, until in 1873, when Abram B. rented his undivided interest therein to Theodore F., and thereafter Theodore F. paid Abram B. rent for such interest, until April, 1877, when Abram B. sold his undivided interest in the tract to Theodore F. Since that time Theodore F. has been in the sole and exclusive possession of the entire tract, cultivating and claiming it as his own. Charles Chandler conveyed the tract to Theodore F. and Abram B. by deed dated June 15, 1876, which was recorded in the proper office on the same day. Abram B. conveyed his undivided interest in the tract to Theodore F. by deed acknowledged on the 18th of April, 1878, and delivered about the 1st of May, 1878, but which was not recorded in the proper office until the 15th of January, 1880.

The Farmers' National Bank of Bushnell obtained a judgment in the McDonough circuit court, against Abram B. Sperling and John R. Sperling, on the 12th of September, 1879, for $515.66, and costs of suit. Execution was issued on that judgment on the 4th of October, 1879, and it was subsequently levied on the north-west quarter of section 9, township 7, north, range 3, west, in McDonough county. On the 20th of March, 1880, the tract was sold by the sheriff, by virtue of this levy, to the bank, and a certificate of purchase was issued to it, which was recorded on the 3d of May, 1880. The decree of the circuit court sets aside this sale, upon the ground that Theodore F. Sperling was the sole owner of the land by virtue of the deed from Abram B. to him, and that the bank is chargeable with notice of this ownership, by reason of his possession of the tract at and before the time it obtained its judgment.

A motion was made to dismiss the appeal upon the ground that there is no question of law certified by the Appellate Court, and the amount in controversy is less than $1000. The motion is overruled. The bill is not for the recovery of any sum of money, but simply to set aside a sale as a cloud upon a title, and to enjoin the making of a deed. In such cases an appeal lies directly to this court from the Appellate Court, when the decision of that court is final. Peck v. Herrington, 104 Ill. 88; French v. Gibbs, 105 Id. 523.

The grounds upon which a reversal of the decree below is sought, necessary to be noticed, in the view we take of the case, are three: First, the proof does not show the payment of the purchase money, in full, by appellee, before appellant's judgment was obtained; second, Abram B. and John R. Sperling were indispensable parties to the bill; and third, the possession of Theodore F., under the circumstances, was not constructive notice that he was sole owner of the property. In our opinion, neither of these grounds is tenable.

First--Whether the payment of the purchase money was in fact made by appellee, in full, before appellant's judgment was obtained, depends entirely upon the veracity of Abram B. and Theodore F. They swear that it was. Counsel for appellant do not claim to have successfully impeached them, but only that on their own statement $400--one-half the amount of a certain $800 note--is unpaid. The price Theodore F. was to pay Abram B., they say, was $2000, subject to incumbrance. They had borrowed of the Bulls, of Quincy, $3500, for which they gave their joint promissory note, and they secured it by a deed of trust on the tract. Of this $3500, in fact only $2700 was for the joint benefit of Abram B. and Theodore F. The other $800 was for the individual benefit of Abram B., only. He gave his individual note to Theodore F. for this $800, and when he sold his interest to Theodore F., he took it up, as a payment of so much of the $2000. Appellant's position is, inasmuch as both signed the $3500 note, Abram B. should only be liable, and therefore should only have given his note to Theodore F. for one-half the $800,--in other words, that he is liable on the note for one-half, and in getting the whole of the $800 he is only getting, to that extent, one-half that he is not liable for. This, as a mere statement of the apparent position of the parties, on the face of the papers, is entirely correct; and if Abram B. had paid one-half of the $3500 note before he sold his interest to Theodore F., or if, as between them, he had continued his liability thereon, he would have remained liable to Theodore F. for only one-half the $800. But it was competent for them to agree, as they say they did agree, to settle upon the basis of Theodore F.'s liability for the whole note,--if he had paid it, recognizing that fact, and if he had not paid it, providing that he should do so,--and in that event it would stand just as if they had jointly borrowed $2700, payment of which was made or assumed by Theodore F., and Abram B. had individually borrowed $800, payment of which was made or assumed by Theodore F., in which case it would be clear to the apprehension of all that Abram B. would owe Theodore F. the whole of the $800, as for so much money paid to his use. The parties are not entirely lucid in their explanations, but we think the fair conclusion, from their evidence, is, that the $800 note was accepted in payment of that amount of the $2000, upon the hypothesis, as between themselves, that the incumbrance proper upon the land, subject to which the purchase was made, was to be regarded as only $3500, less the $800 received by Abram B., (or $2700,) and that the whole amount had been or was to be paid by Theodore F.,--or, to state it a little differently, that Abram B. was to be considered as having paid $800 on the $3500 which he had received from Theodore F., in part payment of the $2000. Whether, when the $800 note was given, it was intended as a...