Hays v. Cassell , 70 Ill. 669 ( 1873 )

Mr. Chief Justice Breese

delivered the opinion of the Court:

This was a motion in the circuit court of Woodford county, by the defendant in execution, to set aside a sale of land thereunder, for the reason that, since the sale, the judgment on which it issued had been reversed by this court. Due notice was given to the purchaser at the sale, who appeared and resisted the motion.

The judgment under which the proceedings were had was rendered by the circuit court of Woodford county, at the April term, 1867. The execution issued thereon bore date October 22, 1868, and the sale made of the premises in question on the 27th February, 1869.

On the same day a certificate of sale was delivered to the purchaser and filed. In August, 1869, the.purchaser assigned the certificate to one Sowards. ¡Notice of the motion to set aside the sale was dated March 10,1870, and the motion duly submitted to the court at the April term, next following.

The judgment on which the execution was issued was reversed by this court at the September term, 1869, and opinion filed in vacation, January 11, 1870, and the final order then entered, remanding the cause.

On these facts, the plaintiff in error, who was plaintiff in execution, makes the point, that the circuit court had' no power to set aside the sale, on motion of the defendant in the execution, after the expiration of twelve months from the day of sale.

The plaintiff was not the purchaser at the sale, but his attorney, and he testifies he made the purchase on his own account, and not for plaintiff’s benefit. He paid no part of the execution at the time he bid off the property, but the costs only, and, as attorney, gave to the sheriff a receipt for the amount of the judgment. Under these circumstances, we are inclined to hold, the purchase was the purchase of the plaintiff in the execution. The certificate of purchase was also his, and could not be transferred to another without authority.

But, admitting the purchase was the purchase of the attorney on his own account, he knew the record had been taken to the Supreme Court, and he purchased at his peril, and can hardly be regarded as a bona fide purchaser. He knew his client had taken a judgment for an amount larger than the proof warranted, and knew, therefore, the judgment would be reversed in this court, where the case was then pending.

The certificate of purchase conveyed no title to the purchaser, nor did it disturb the possession of the defendant; that still continued in him, and would so remain until fifteen months had elapsed, and his title transferred by the sheriff’s deed. McLagan v. Brown et al. 11 Ill. 519.

This being so, there can be no question of the power of the court to act on the motion, no deed having been made. The effect of a judgment of reversal is, to restore the defendant to all he may have lost by the erroneous judgment, if the title to the property has not passed, by the execution o'f the judgment, to a third party. In such case he would have an action against the plaintiff, to recover full damages.

No deed having been executed, and the defendant remaining in possession of the land sold, he was in a position to ask the court to set aside the sale, on making proof that the judgment had been reversed, for there was then no judgment to support the sale. That his motion was not made within the time allowed for redemption, the facts show he could not know of the reversal until the judgment of this court was finally announced, and that was after one year had elapsed. Deeming, as we do, the real party in interest in this question to be the plaintiff in the execution, we do not consider it was necessary to notify the assignee of this motion. Indeed, we do not perceive, if Sowards or Stubbs was a bona fide assignee, how it was possible for the defendant in the execution to obtain a knowledge of that fact, as the law does not require the assignment to be recorded, and the assignor does not claim that he notified the defendant of the assignment.

In such respect as either of them may be injured by allowing this motion, the remedy is against their assignor; but in respect to them, or either of them, the plaintiff in error can have no interest or concern. If all the interest in this sale is centered in Sewards or Stubbs, then the plaintiff in error would seem to be grasping at a shadow.

The judgment of the circuit court is affirmed, for the reasons given.

Judgment affirmed.