King v. Arney , 114 Ill. App. 141 ( 1904 )

Mr. Presiding Justice Freeman

delivered the opinion

of the court.

It is urged in behalf of appellants that equity is without jurisdiction to interfere with the judgment of the justice, both of _the appeals taken from that judgment having been dismissed in the Circuit Court. It appears, however, that one of the appeals was still pending when this bill was filed, and that notwithstanding the fact that said appeal was undisposed of, appellant had filed a real estate transcript in the Circuit Court, had caused an execution to be issued out of that court and levied upon the real estate in controversy, and the land had been sold bv the sheriff to appellant easier. The bill prays “ that the real estate transcript filed in the office of the clerk of the Circuit Court, said execution issued thereon, and said levy and sheriff’s sale had in pursuance thereof, may each and all be declared null and void as a cloud upon the title of yóur orator to said premises,” etc. The master found the property in controversy to be worth at least $4,000; that the price $188.72 for which it was sold to Casler by the sheriff is grossly inadequate; that no notice of the levy or sale was given to the owner; that the purchaser, Charles R. Casler, as the attorney of appellant King, is chargeable with notice of all the irregularities attending the transaction, and thatthe judgment under which the execution issued and the sale was made was wrongfully obtained upon a debt previously reduced to judgment and fully paid.' These .findings appear to be fully justified by the evidence. Under these circumstances equity had jurisdiction to set aside the sheriff’s sale, and having obtained jurisdiction of the subject-matter and the parties, may go on and do justice between them, although to do so may require matters to be passed upon which alone would not be cognizable in equity. Pool v. Docker, 92 Ill. 501-509; Savage v. Berry, 2 Scam. 545-547.

That a gross inadequacy of price where property has been sold upon- execution at a judicial sale, when accompanied with even slight evidence of irregularities indicating unfairness or fraud upon the part of the officer, the purchaser or the party benefitted by the sale affords sufficient ground for equitable interposition, is well established. Davis v. Chicago Dock Co., 129 Ill. 180-189; Henderson v. Harness, 184 Ill. 520-533, Miller v. McAlister, 197 Ill. 72-79; Hobson v. McCambridge, 130 Ill. 367-378.

It is clear that the demand of appellant King for material furnished to the contractor to be used upon appellee’s building constituted a single cause of action. Even t-hough he was entitled to sue both contractor and owner jointly under the Mechanic’s Lien law, yet having sued the owner and recovered a judgment therefor which was paid and satisfied, that judgment was a bar against, another suit for the same cause of action. People v. Harrison, 82 Ill. 84-86; Jansen v. Grimshaw, 125 Ill. 468-474; Nickerson v. Rockwell, 90 Ill. 460-463. While appellant King might pursue both remedies, as he did; he could have but one satisfaction of his claim. West v. Flemming, 18 Ill. 248-249. Having obtained that against the owner he could not obtain the same satisfaction over again, against the owner and contractor jointly. Such a judgment was fraudulent and against conscience. In such case a court of equity will grant relief. McGehee v. Gold, 68 Ill. 215-216.

The decree is right and will be affirmed.

Affirmed.