Luft v. Gossrau ( 1889 )

Green, J.

On the 19th day of May, 1887, defendant in error tiled her bill in chancery to the September term, 1887, of the City Court of Alton, alleging she was the owner in fee of two city lots and obtained her title thereto July 25, 1885, and has ever since owned and been possessed of. said real estate; that on March 4,1887, George Luft recovered a judgment before a justice of tlie peace against T. Gustave Gossrau for $174, and on the 23d day of March, 1887, caused a transcript thereof to be filed in the office of the clerk of the Circuit Court of Madison County, and on the 28th day of April, 1887, Edward A. Burke, sheriff of said county, by virtue of an execution issued on said judgment, levied upon said lots as the property of T. Gustave Gossrau; alleges said defendant in execution has not, nor ever had any interest in law or equity in said real estate, and tlie same is not liable to levy and sale under said execution; that the sheriff is threatening to, has advertised for sale, and will sell said real estate under and by virtue of said execution, unless restrained by injunction, and if permitted to sell and file certificate of salé it would cloud and cast suspicion upon complainant’s title; that said levy, advertisement and threatened sale were instigated by said George Luft, for the purpose of injuring and harassing complainant, and with the fraudulent intention of casting suspicion and cloud upon her title. Burke,, the sheriff, and Luft, are made defendants, and the relief prayed is that Burke as sheriff be restrained from selling said real estate under said execution, and Luft be restrained from causing the same to be sold and from attempting to enforce said levy, or from embarrassing the title of complainant to the same, and for such other and further relief in the premises, as shall be agreeaVe to equity and good conscience. ISTo injunction was in fact issued and defendant, Luft, as appears by the decree, was served with summons more than ten days before said September term, A. D. 1887. At the February term, 1888, complainant dismissed her bill as to Burke, and by leave of the court the bill was amended by inserting that said sheriff on May 20, 1887, sold said real estate under the execution mentioned, to said Luft, of the debt, interest and costs recovered. At the same term the bill tvas taken pro confesso and that order was afterward at the same term set aside. On the first Monday of the September term, 1888, no answer having ever as yet been filed on behalf of Luft a decree pro confesso was entered, and on the second Thursday of same term the cause was referred to a special master to take and report the proof, wdiich he did, and afterward at the same term the final decree was entered. In this decree the court finds defendant, Luft, was duly served with process ten days prior to first day of September term, 1887; recites dismissal as to Burke, amendment to bill by leave of court (setting out amendment in full), default of Luft, and entering of a decree pro confesso, and by special findings, not necessary to repeat here, finds the allegations of the bill, as amended, true ; finds that Burke, as sheriff, on August 25, 1888, ‘made and delivered deed for said real estate to Luft as purchased at said execution sale, which deed was recorded in the recorder’s office of Madison county, and orders and decrees said sale be set aside and held for naught; that no title or interest in or to said real estate has vested in Luft by virtue thereof; that said certificate of purchase and sheriff’s deed be set aside and adjudged null and void, and Luft and all persons claiming under him since the commencement of the suit be barred from all or any title, interest or claim in or to said real estate, and that the title thereto is in complainant, Auguste Gossrau. Mo effort was made by, or on behalf of Luft to open or set aside this decree, from the time of its rendition until the suing out of this writ of error, and no suggestion or claim is now made ; that the decree was not right upon the merits of the case, or that any one other than complainant had any title or interest in said lots at the time Luft recovered his judgment. But we are asked to reverse this decree, because it does not appear complainant had leave to amend her bill, and if she obtained such leave the court erred in permitting an amendment incorporating matters occurring after the filing of the bill, which could only be properly introduced by supplemental bill; that the sheriff was a necessary party, and after the sale had been made and the bill dismissed as to him there was no subject-matter left upon which a decree could operate under the case made and relief sought by complainant’s bill; and finally, the relief granted by the decree is inconsistent with and broader than the allegations and prayer of the bill. We find by the record that in the bill it is directly alleged, “at the February term, A. D. 1888, the complainant came and by leave of the court amended this bill by inserting,” and here follows the amendment, and in the decree is recited the fact that such amendment to the bill was made by leave of the court; thereby it sufficiently appears to us, the bill was so amended by leave of the court and touching the objection to permitting such amendment, the rule that matters occurring after the bill is filed can not be added by amendment, is subject to the exception that if no answer had been filed at the time leave to amend was granted and amendment made, it was proper to allow such matters to be added by way of amendment. 1 Daniell’s Chy. Pld. & Prac., 5 Am. Ed., See. 407 et seq. and notes. Story’s Eq. Pld., 8th Ed., Sec. 885. In this case, Luft having failed to answer at all, and the decree pro confesso as to him having been entered, he is in no position to challenge this ruling of the Circuit Court. We also fail to perceive the necessity for retaining the bill as to the sheriff, or "that the dismissal of the bill as to him was error or left the cause in a condition that there was no subject-matter upon which the decree could operate. True, one purpose of the original bill was to restrain the sheriff from selling the real estate, but on the day after the bill, was tiled and before he was enjoined, he had made the sale; and having no interest or title then in the property, or any rights involved, and the relief against his acts being only incidental to" the substantial relief prayed for, and having been thus defeated, he was no longer a necessary party to the bill or amended bill. And finally, we are of opinion the relief granted by the decree was not inconsistent with or broader than the allegations and prayer of the bill as amended. It was not a single bill for "injunction mere!y; its scope and purpose were much broader; the prayer was not only that Luft might be restrained from embarrassing complainant’s title, but for such other and further relief in the premises as in equity she was entitled to. She was the sole owner of the lots; as was alleged, her property had been wrongfully sold to Luft by the sheriff to satisfy an execution against one who had no title or interest in the lots, and these facts were alleged and proved. Her title had a cloud and suspicion cast upon it by this1 sale and the sheriff’s certificate and deed to Luft, appearing of record, and she was entitled to own, possess, enjoy or dispose of her said real estate with her title thereto unembarrassed by, and relieved from, this cloud upon it, placed there by the wrongful acts of Luft. Hence the fulFand perfect relief in the premises asked for, and to which in equity she was entitled under the general prayer, could be given her only by decree setting aside and adjudging void said sale, certificate and deed to Luft, and decreeing the title to said lots to be in complainant; the decree in this case granting such relief was right and is affirmed. Judgment affirmed.