Adkins v. Beane , 1891 Ill. App. LEXIS 273 ( 1891 )

Wall, P. J.

Bill for an injunction filed by Randall J. Adkins, William 3L Mertz and Martin L. Perrine, alleging that on July 18, 1883, Linns C. Chandler was the owner in fee by inheritance from bis father, Charles Chandler, of the undivided one-seventh part of all that part- of the east half of the sonthwest quarter, and the west half of the southeast quarter of Sec. 31, T. 19 N., R. 9, W., that is included in lot five, as platted byvJ. S. Lynch, and recorded in Yol. 42 of deeds, at p. 202, in the recorder’s office of said county, and lots eight and nine in the addition of Charles Chandler to the town of Cliandlerville, and lot 90 in the town of Chandierville in said connfy, that on that date Nellie M. Beane began an original attachment suit in the said Circuit Court against the said Linus C. Chandler, and an attachment writ was issued returnable to the next August term of said court and that the same was levied upon all the interest of the said Linus C. Chandler in said premises, and that a certificate of levy was duly filed, that before that date Sherman Paddock had begun an attachment suit against the said Linus C. Chandler, and that a writ of attachment had issued, returnable to the said August term, and liad been levied on all the interests of Linus C. Chandler in the same premises, and certificate of levy duly filed. That personal service was not had upon Linus C. Chandler in either of said suits. That at the said August term, judgments in <rem were rendered in said attachment suits against said property for $446, in favor of Nellie Beane, and for $1,337.98 in favor of Paddock. That at the date of said judgments the estate of Charles Chandler had not been settled, and for that reason no sale of the said interest of Linus C. Chandler was made at the time. That afterward a portion of the heirs of Charles Chandler began in said Circuit Court a proceeding for the partition of the said premises against the other heirs, Linus C. Chandler being made a defendant, but that neither the said Paddock nor Beane were made parties to the same, but during the pendency of the partition proceedings, Paddock interpleaded therein, and by a petition in writing alleged that he had recovered the above mentioned judgment, and that it was a first lien upon the said interest of Linus C. Chandler. That in August, 1888, a decree was rendered in the partition suit, in which the court found that said judgment in attachment of Paddock was a lien on the interest of Linus, and ordered the entire premises sold “free from the said attachment lien ” and the money brought into court, and that at the sale made hy the master in pursuance of said decree the complainants became the purchasers of the premises above described, and that subsequently an order of distribution was made in the partition suit directing the master to pay out the proceeds in accordance with the interests of the parties as found by the court, making no reference whatever to the judgment of ¡Paddock; that in pursuance of that order the master paid to Paddock the one-seventh interest of Linus C. Chandler, amounting to $540. That on August 19, 1890, the said Nellie M. Beane sued out a special execution on her said judgment in attachment and was threatening to sell the interest of Linus C. Chandler in said premises.

The bill further alleges that the effect of the said sale by the master in chancery was to sell the entire interest of Linus 0. Chandler in said premises under the attachment judgment of Paddock; that it was for the benefit of the Beane judgment as well as for the Paddock judgment, and that any further sale under the Beane attachment would put a cloud on the title of petitioners; makes ¡Nellie ¡M¡. Beane and John Dirreen, sheriff, defendants, and prays that they be enjoined from making such sale, etc., and for general relief.

The. Circuit Court sustained a demurrer to said bill, and dismissed the same at the cost of the complainants therein. The record is now brought to this court upon a writ of error and the question is, as to the ruling of the court upon the demurrer. It is urged on behalf of the plaintiff in error that the case is within the rule announced in Warren v. Iscarian Community, 16 Ill. 114.

In that case it was held that the sale of the property attached, under a special execution issued upon one of two judgments in attachment (where the writs of attachment were returnable to the same term) was in effect a disposition of the entire fund common to both judgments, and that the purchaser acquired the property free of the lien of the other attachment creditor.

There, the sale was made under and by virtue of the attachment proceedings, and by reason of the statute applicable thereto, the conclusion reached was clearly correct. The other creditor had ample means of protection in view of the fact that he was really a party to the proceeding and bound by it. He was required to take notice of what occurred. He could see that the property brought its value and he was at liberty to apply to the court for his share of the proceeds. In this case the situation is quite different. The proceeding was for partition, and the attachment creditors were not parties thereto. One of them, Paddock, was admitted as a party on his own motion and obtained the entire proceeds of the sale. The sale was not made, in form or in substance, under the provisions of the attachment act, and the other attachment creditor was not affected by it for the plain reason that she was not a party to the proceedings. Her lien was not divested. Had she been a party to the partition case she would have been entitled to a pro rata share of the proceeds; and she may still rely upon her lien.

We are of opinion that she should be allowed to sell a part of the property proportioned to her lien, as compared with the concurrent lien of Paddock, but should not be permitted to do more.

This proportion can be determined by ascertaining the true - value of the property, and unless a sum equal to what she would be entitled to is paid within a day to be fixed by the court, she should be allowed to sell the entire property in satisfaction of that amount.

Of course Paddock should refund, but she is not bound to look to him. If he is made a party to the suit the rights and equities of all concerned may be adjusted. It need hardly be said that- in case the purchasers are compelled to pay any- ■ thing to rid the property of the unsatisfied lien of the Beane attachment, they are entitled to a decree against Paddock therefor to the extent of whatever he may have received above his just proportion. The bill should have been retained for the purpose indicated.

The decree dismissing the bill will be reversed and the cause remanded.

Reversed and remanded.