Yackle v. Wightman , 1882 Ill. LEXIS 164 ( 1882 )

Mr. Justice Sheldon

delivered the opinion of the Court:

The plaintiff’s claim of title is by master’s deed, dated February 26, 1881, and the defendant’s landlord’s (Newton) claim of title is by deed dated December 23, 1875, and recorded December 29, 1875, a period of more than five years anterior to the date of plaintiff’s deed. This fixes Newton’s as the paramount title, unless at the time of the sale and conveyance from John Wightman to Newton, December 23, 1875, the premises were subject to the lien of the decree as against Newton.

In the case of Sapp v. Wightman, decided at the present term, (ante, p. 150,) a suit in ejectment, where the title to the other tract of eighty acres embraced in this same master’s deed was involved, we considered the effect of this decree as being a lien upon these lands in Tazewell county, and determined that it was not a lien upon them; that the lien of a judgment or decree of the circuit court of a county is a lien only upon lands within its territorial jurisdiction, and no lien upon lands without the county in which such judgment or decree is rendered, and that the court had no power to make its decree a lien upon lands beyond the boundary of its territorial jurisdiction. That decision, however, was made without reference to the effect of the statute of 1874, which provides for filing the transcript of a judgment or decree, in a case where the venue has been changed, in the clerk’s office of the county from which the change of venue was taken. The sale and conveyance from John Wightman, there, having been in 1866, that case was not affected, by this statute, passed afterwards, in 1874. But in the present case the sale and conveyance from Wightman was in 1875, after the passage of that statute, hence there is the additional question to be considered in the present case of the bearing of that statute.

The statute is: “Upon the entry of any judgment or decree in any civil case in which the venue has been changed, it shall be lawful for the party in whose favor the judgment or decree is rendered, to file in the office of the clerk of the court where the suit was instituted, a transcript of such judgment or decree, and said clerk shall enter the same, in his judgment docket, and execution may issue thereon, and the same shall, from the filing of such transcript, have the same operation and effect as if originally rendered in such court. ” Rev. Stat. 1874, p. 1097, sec. 34. Without this statute, and the doing of what was therein prescribed, the decree could not be made a lien upon lands in Tazewell county as against an innocent purchaser for value. .

But no step whatever was taken thereunder after the passage of the act. True, before the passage of the act, and soon after the rendition of the decree, in obedience to its express direction, the decree was recorded in the book of record of deeds in the recorder’s office of Tazewell county. This was merely to comply with the decree. The law did not provide for the decree to be so recorded, and the recording of it affected nobody with notice of the decree. The records of the clerk’s office and the judgment docket is where, under the law, intending purchasers of land are to look for judgments and decrees against it, not the records of the recorder’s office. And, although the clerk of the circuit court is ex officio recorder of the county, this recording in 1859 can not be accepted as a substitute for, and to stand in the place of, the filing under the statute of 1874, of a transcript of the decree in the office of the clerk of the circuit court, and the clerk’s entry of the same in his judgment docket. Had the complainant in the divorce suit proceeded, under this statute of 1874, and filed a transcript of the decree in the clerk’s office of the circuit court of Tazewell county, the clerk, as it was his duty to do, would have entered the same in his judgment docket, and this would have affected purchasers of the land with notice of the decree, and it would have been a valid lien upon the land, under that statute.

The requisite proceeding, then, not having been taken, under this statute of 1874, to give to the decree the same operation and effect as if originally rendered in the circuit court of Tazewell county, we find that there was no lien created upon the land under and by virtue of this statute of 1874, and hence, that the purchaser from John Wightman • (Newton) took by his conveyance from Wightman the title in fee, unaffected by any lien of this decree of the Peoria county circuit court. It follows that the instructions to the jury were erroneous, and the judgment will be reversed and the cause remanded.

Judgment reversed.

Mr. Justice Scott dissenting.