Lomax v. Dore , 45 Ill. 379 ( 1867 )

Mr. Chief Justice Breese

delivered the opinion of the Court:

It has been repeatedly decided by this court, that a proceeding to enforce a mechanic’s lien is a chancery proceeding, and governed by the rules which apply to them, consequently all persons interested in the property should be made parties to the proceeding.

In this case, Brown was the sole defendant, while the record of deeds of the county where the premises were situated, showed that the legal title was in another in trust for others, Brown having only an equity of redemption. This trustee and the eestuie que trust should have been made parties, and the demurrer reached this objection. Brown’s interest alone was reached by the decree in the lien cause, and, of consequence, the sale to defendants in error transferred only his title to them.. Brown had conveyed the land, before he made the contract with the defendants in error, to one Edward A. Marye, in trust, to secure the payment of the purchase money to one John T. Lomax, from whom he had purchased the land. This was on the 6th of June, 1859, and the deeds duly recorded on the 6th of August following. On the removal of this trustee, in November, 1862, by death, the court appointed Charles H. Wood in his stead, who, on the 13th of June, 1863, proceeded to advertise and sell the land, which he did do, one Presley T. Lomax being the purchaser at the price of $5,000, to whom a deed was made and duly recorded. The defendants in error, under the decree in their favor against Brown, sold the land, purchased it themselves, and received a deed therefor.

By this purchase their lien was extinguished, and all the title they had to the premises was of a legal nature, to be enforced, if anywhere, in a court of law. Lomax, being in possession under Ms deed, was in a position to be attacked by the defendants in a court of law, — equity had no jurisdiction of such a ease, and, their title derived through Brown being junior to that of Lomax under the deed of trust, they would, necessarily, have failed in their action. A resort to equity in such case cannot be had. The demurrer should have been sustained for this reason.

Brown, the only defendant in the cause to enforce the lien, was in no better position, as to an interest in these premises, than a mortgagor would have been, and this court held in the case of Williams v. Chapman et al., 17 Ill. 423, where two parties have acquired title to land—one under proceedings to enforce a mechanic’s lien, the other under proceedings to foreclose a mortgage—if the mortgagee or others interested were not made parties to the suit to enforce the lien, and were ignorant of it, the title to the land derived through the mortgage will be superior. This settles the questions raised, and is decisive against the defendants in error.

The judgment of the Circuit Court is reversed and the cause remanded for other proceedings consistent with this opinion.

Judgment reversed.