McPherson v. Wood , 1893 Ill. App. LEXIS 149 ( 1893 )

Mr. Justice Boggs

delivered the opinion of the Court.

The writ of coram, nobis was employed only to supply or rectify a mistake of fact in a decree or judgment not put in issue or passed upon by the court. The writ was abolished by Sec. 67, Chap. 110, R. S., which provides that such mistake of fact may be corrected by motion in the court, wherein the judgment or decree was entered. The motion is therefore only effectual to reach such mistakes of fact as might have been corrected by the writ, coram nobis, before it was abolished.

In rendering the decree of foreclosure, the court necessarily passed upon and determined the amount due to the complainant upon the original indebtedness, and for attorneys’ fees, under the provisions of the mortgage, and also necessarily determined that the execution of the mortgage created a lien upon the mortgaged premises, which, of course, included the power and right of the mortgagor to' execute the instrument. Therefore the motion coram nobis did not operate to bring such questions of fact again before the court.

Of all the facts sought to be pressed upon the attention of the court upon the hearing, the motion ooram nobis had efficacy to bring before the court only one question, whether Alletta Thompson, the complainant in the decree, was living when the decree was rendered, and to authorize the court to consider and determine the effect of the decree if it should appear that she was not living when it was rendered. It is well settled that the death of a plaintiff or complainant must be taken advantage of by a plea in abatement, otherwise the judgment or decree will be binding upon the adverse party. Life Association v. Fassett, 102 Ill. 315. The ruling of the court upon the motion as a motion coram nobis, was therefore well advised and correct.

The decree of foreclosure and order of sale was a final decree and became conclusive upon the defendants, as it was not appealed from. Myers et al. v. Manny, 63 Illinois 211.

Hence, we can not consider whether errors intervened in the proceeding antedating the decree or in the action of court in rendering the decree. It only remains to determine as to the propriety and correctness of the ruling of the court upon the matters set forth in the motion of the purchaser, Wood. The failure of the master to report the sale of the court was not of itself reason sufficient to warrant the court in setting aside the sale. Moore v. Titman, 53 Ill. 358.

The remaining contention is that as the master failed to report the sale until after the time allowed by law to the appellant in which to redeem from the sale had expired, the order of the court directing the delivery of the certificate to the appellee (the purchaser) and that the master execute a deed to such purchaser upon presentation of the certificate and demand therefor, had the effect to deprive the appellants of all right and opportunity to make redemption. We do not see the force of this insistance. The appellants were parties defendant to the decree of foreclosure. It is to be presumed that they knew that the land was to be sold by the master. Public notice as required by the decree was given of the time and place of the sale. The master was a public officer, an agent of the court engaged in discharging an official duty. He ought to have made report to the court, and either party to the proceeding could have compelled the performance of such duty at any time.

It does not appear that the appellants were, in fact, ignorant of the fact that the land had been exposed to sale by the master, nor does it appear that they sought information as to such sale, or as to the acts of the master under the decree. Inquiry of the master would, no doubt, have fully advised them, or the aid of the court might have been invoked to that end. Under such circumstances, it is to be presumed that they were cognizant of the sale, and of all that publicly transpired there. The lands were then and there publicly struck off and sold to the appellee, Wood. The statutory requirement that the master shall file a duplicate certificate of purchase in the office of the recorder to be spread upon the public records, is not for the purpose of notifying the parties to the foreclosure proceeding that the master has executed the decree, but the design is to notify persons who, as judgment creditors, or subsequent purchasers, or otherwise, are interested in, but not connected with the proceeding as parties. A failure to comply with the statute can not, therefore be seized upon by a defendant to the decree as grounds of objection to the sale.

It is urged that it was error for the court to direct the master to deliver the certificate to the purchaser without first approving the sale. It is true that the order or decree appealed does not, in express words, approve or confirm the sale, but such is its legal effect.

Believing that there is no substantial ground of objection to the order appealed from, it is affirmed.