Chicago, Burlington & Quincy Railroad v. Watson

Mr. Justice Dickey

delivered the opinion of the Court:

The decree in this case concerns two separate tracts of land,—the Lake county land, and the private railroad street, —the one lying in the county of Lake, and the other in the county of Cook. The complainants in the original bill ask for no relief as against the Lake county land, and claim no interest in or lien upon the same. The Lake county land is claimed by the Commercial, National Bank, by two titles,— one derived through the purchase at sheriff’s sale under the Lake county judgment of the bank against Walker. This judgment was entered January 28, 1874, and on execution sued out, this land was sold, on July 6, 1874, to the bank, in satisfaction of that judgment, and the bank received a certificate of purchase, which was duly recorded. No redemption from this sale was ever made or attempted, either by Walker or any judgment creditor. On October 6, 1875, the time for redemption expired, and the bank on that day became entitled to a sheriff’s deed, and has ever since been entitled to have such deed. In equity, the title of the bank is the same as if the sheriff’s deed had been made. Walker was not adjudged a bankrupt until April 26, 1878. At that time all his right and interest in that land were cut off by that sheriff’s sale, and had been so cut off ever since July 6, 1875, when his right of redemption from that sheriff’s sale expired. It is plain the assignee in bankruptcy acquired no right to this land under the bankruptcy proceedings, unless there was some vice or imperfection in this sheriff’s sale, rendering the deed inoperative,—and none is shown. But if this title under the r> sheriff’s sale of July 6, 1874, be regarded as incomplete or inchoate for want of consummation by a sheriff’s deed, the bank still has another title ■ through the Tilton trust deed, which was recorded in 1872, and under which that land was sold to Eames, on July 3, 1875,'at the price of $86,000," and on that day conveyed to him by the trustee by an absolute deed, which was at once recorded. By this sale all of Walker’s interest in or title to this land passed to Eames, (who bought for the bank,) and unless Walker afterwards acquired title, his assignee in bankruptcy took no title. No question is made as to the bona fides of the debt upon which the Lake county judgment was rendered. The bona fides of the Tilton claim is expressly conceded, and also its priority as a first and valid lien upon the property.

It is charged in the cross-bill of the assignee that both these sales were unreal,—were colorable, only, and were made for the purpose of covering this property for Walker, from other creditors, and that the purpose of these proceedings was to delay, hinder and defraud other creditors of Walker. The proofs, however, utterly fail to establish this charge. It is plain, from a consideration of all the proofs, that the sole object of Eames, in all his transactions in relation to this land, was the promotion and protection of his own rights and interests, and those of his bank.

It is suggested, however, in argument, that the arrangement under which this land was sold to Moorehead constituted that transaction a mortgage to secure to the bank the payment of all debts from Walker to the bank, and saved to Walker a right of redemption. This suggestion, if well founded, could not properly be made availing here, for the assignee in bankruptcy, in his bill, does not seek to redeem, and there is no offer on the part of the assignee to redeem. It would therefore avail nothing, in this suit, to hold that Walker still had a right of redemption by reason of the arrangement of July 3, 1875. But even if the pleadings did raise this question ever so plainly, such relief could not properly be granted, because that arrangement, as shown by the proofs, gave to Walker no right of redemption whatever. The arrangement made before the sale on the Tilton deed of trust, as shown by the proofs, was, in substance, that the land, if sold to Barnes at that sale, should be sold to Moorehead for a sum equal to the cost of the land to the bank added to the demands of the bank against Walker remaining unsatisfied by the proceedings under which the land was acquired by the bank. By those proceedings the Lake county judgment had been satisfied, which, with interest, amounted then to about $34,831.56; the Tilton claim would be satisfied, say, $54,-240.38; also, the claim bought of the First National Bank, the next lien, $7706.85,—in all, $96,778.79. Add to this the fees of trustee and lawyer, $600, which gives the cost of the land to the bank, $97,378.79. The remaining debts of the bank against Walker (being his liability on the Kuney note, and on the Danville railroad note, and to the Ottawa bank, and on the Manning judgment,) amounted to about $60,521.27. This, added to the cost, aggregated about $157,-900.06. The arrangement then was, that Moorehead should buy the land, unconditionally and absolutely, from the bank, at the price of $157,900, to be paid in three equal installments,—one in six months, one in twelve months and one in eighteen months,—with interest on each installment at eight per cent per annum, payable half yearly, and that the full payment of all this purchase money by Moorehead should operate as a satisfaction of the unsettled demands of the bank, amounting to about $60,521.27, and that a deed should at once be made by Barnes, who held the title for the bank, to Moorehead, and Moorehead should give to the bank his promissory notes for the price, and secure the payment of these notes by a deed of trust upon the land, to Keep, as trustee; and that, as further security for the payment of these notes, the bank should retain all these demands against Walker, and' might proceed with the collection thereof, and whatever should be collected therefrom should apply as so much paid upon the Moorehead notes. And the better to enable Moore-head to pay, it was to he provided in the deed of trust to Keep, that upon payment of the first third of the purchase money and the first installment of interest, one-third of the land was to be released from the lien of the deed of trust, so that Moorehead could make sales with a clear title. This deed of trust was also to contain a power of sale by the trustee, on default in any of the payments.

This land was bought by Barnes at the sale under the Tilton deed, at $86,000, and the arrangement for the sale to Moorehead was, on July 3, 1875, carried out by the parties. There were three parties whose interests were to be affected by this arrangement: Walker,—who had great faith in the value of this property, and thought it could be laid off in blocks and lots, and readily sold for much more than the purchase price,—had induced Moorehead, in the hope of making a profit thereby, to -make the purchase. Barnes, who had not so high an idea of the value of this property, by the arrangement got the personal liability of Moorehead, (who was supposed to be worth at that time about $60,000,) in addition to the land which he already had, and in addition to the claims which he already had against Walker, as a guaranty that he should realize $157,900, and interest, out of that land, and for the sake of that guaranty he was willing to agree that full payment of the Moorehead notes should operate as a satisfaction of all remaining demands against Walker. Walker was interested in consummating this arrangement, for by his efforts in aiding Moorehead to make sales of the property, so as to bring at least the amount of the purchase money,—and, as he thought, more,—he would, if successful, satisfy over $60,000 of debts, without resorting to any other part of his property. It is thus seen, that instead of these Moorehead notes and trust deed being given as a security for this $60,000 of indebtedness of Walker to the bank, the fact was, that these demands against Walker were retained by Eames as collateral security for the payment of the Moorehead notes. These Moorehead notes were not paid, and in default of payment by Moorehead this land was sold by the trustee, and bought by the bank, at the sum of $100,000, on the 31st day of January, 1877, and the same was on that day conveyed by Keep to the bank.

We see no ground on which Walker could have disturbed this title, by redemption, or otherwise. It was more than a year after the consummation of this title when Walker was adjudged bankrupt. It was six months more before Jenkins succeeded to Walker’s rights, and no one pretended to question the title of the bank to this land until January 31, 1880,— three years after it had ripened into an absolute title. Nor is it perceived how any creditor of Walker could be prejudiced by this arrangement. It appropriated no property which they could, in any event, have applied in satisfaction of any of their demands. The arrangement was such that it might benefit such creditors, but it could not possibly harm any one of them. The plan proposed was to create a new fund, without taking any property of Walker’s, by which a part of Walker’s debts might be wiped out, and thus render him more able to pay the residue of his debts, of which the judgments of complainants constituted a part. Plainly, neither Walker nor his assignee in bankruptcy, nor any creditor of Walker, could have cause to complain of the arrangement to sell to Moorehead,—nor was it of such a character as to give to any one a right of redemption, except from the Moorehead trust deed, and that right was cut off by the sale to the bank, January 31, 1877. Title of the bank to the Lake county land, under that sale, is plainly paramount to the claim of Jenkins, the assignee.

We come next to the consideration of that part of the decree relating to the land known as “Private Bailroad street.” This decree was pronounced October 28, 1882. The Chicago, Burlington and Quincy Bailroad Company was at that time in possession of that property, claiming title under Samuel J. Walker, through a deed made by Eames and wife to that corporation, on January 11, 1879. The original complainants claim to appropriate the property in satisfaction of judgments which they have against Walker, as the property of Walker, and the assignee, Jenkins, claims the property as part of the estate of Samuel J. Walker. All parties claim under Walker. The railroad company claims that Walker was divested of all claim to this property in several -different ways:—

First—By the quitclaim deed of Walker and wife, made January 4, 1876, conveying this property to H. F. Eames, which was recorded February 16, 1876. This was prior to Walker's bankruptcy, but subsequent to complainants’ judgment liens.

¡Second—By sheriff’s deed to Eames, made May 21, 1877, under the Manning judgment, rendered January 20,1875, and on which execution issued within the year, and on which a vendi was afterwards issued, and, on due notice, the sale was made to Eames, February 19, 1876. This was subsequent to complainants’ liens, and prior to .Walker’s bankruptcy.

Third—By a sheriff’s deed, made June 1, 1878, to Moffat, in pursuance of a sale upon the Moffat judgment, which w'as a lien prior to complainants’ liens, nourished by a redemption by Moffat from a former sale under the Bawson judgment, which was the first judgment lien.- This title passed, by deed, from Moffat to Eames, on June 3, 1878, which was duly recorded.

Fourth—By sheriff’s deed of June 25, 1878, to Eames, as assignee of Allen Jordan, who bought the property at a sheriff’s sale made March 24, 1877, under a judgment and execution against Walker and Young, in favor of O. H. L'ee, which judgment was a lien prior to complainants’ judgments.

By the decree in this case, made October 28, 1882, each and all these judgments, executions, sales and sheriff’s deeds, and Walker’s deed to Eames, are set aside, and this property adjudged to be that of the assignee in bankruptcy of Walker, subject to the liens of complainants for the amounts due on their judgments, aggregating about $109,422. It is plain that if any one of these titles in Eames can be sustained, the assignee in bankruptcy has no standing enabling him to claim this property, and it is equally plain that if the title under the Bawson and Moffat judgments, or the title under the Lee judgment, can be sustained, neither the original complainants nor the assignee in bankruptcy have, in equity, any right to such a decree, and that such title is superior to the rights, claims, liens and equities of both the original complainants and those of the assignee in bankruptcy.

Let us first consider the title of Eames to this tract of land, under the Lee judgment. This judgment was rendered in the Superior Court of Cook county, in favor of Lee, and against Walker and Young, on April 8,1874, for the sum of $5668.12. Execution was at once sued out, directed to the sheriff of Cook county, and returned by the sheriff, October 25, 1874, “no part satisfied. ” An alias execution was sued out on November 21, 1876, and. the same was levied, on the same day, on the property called “Private Railroad street, ” and having been duly advertised, was sold, on March 24, 1877-, by the sheriff, for the sum of $5900, to Allen Jordan, to whom the sheriff issued a certificate of purchase, dated March 28, 1876, which was on that day duly recorded, and on June 25, 1878, the sheriff conveyed this property to H. F. Fames, to whom this certificate of purchase had been assigned by Allen Jordan, the purchaser. This judgment was prior, in time, to all the judgments owned by the original complainants. • There were two other judgments against Walker upon the records of the Superior Court of Cook county which were prior in date to this Lee judgment,—one in favor of one Rawson, for $5237, rendered February 25, 1874, and one in favor of Moffat, for about $7718, rendered March 14, 1874¡—and on each of these judgments executions had been sued out, and returned unsatisfied, within that year. This Lee judgment had been assigned by the plaintiff, some time in November, 1874, to Rend & Co., and the assignment was filed in the case, and about May 2, 1876, Fames bought the same from Rend & Co., and after this an alias execution was sued out, in November, 1876, and levied on this property. Fames, through Helm & Manning, as solicitors, caused a bill in chancery to be filed in the Superior Court of Cook county, in the name of Rend & Co., as complainants, and against S. J. Walker, Rawson, Moffat, one Prentiss, Henry Walker, and others, as defendants. And such proceedings were afterwards had that Samuel J. Walker, Henry Walker, and the owners of all older judgments, by service of process, were brought into court, and on February 20, 1877, a decree was entered declaring the property to be that of Samuel J. Walker, and subject to the lien of this Lee judgment, and directing the sale of the property and the application of the proceeds to the payment of that judgment, and declaring and adjudging this judgment to be a prior and first lien upon the property, as against the owners of the older judgments. And it was in pursuance of this decree that the sale above mentioned was made, on March 24, 1877, by virtue of the alias execution issued upon that Lee judgment, and at which Allen Jordan became the purchaser, as above stated. These proceedings seem to be regular, and whether this decree was erroneous or not, it became and was binding upon the parties thereto, and hence the title derived under this Lee judgment is not subordinate to the judgment liens of the Bawson and of the Moffat judgments.

The principal allegation of complainants, and of the assignee of Walker, in this case, and on which they ask that this Lee judgment, and the sale under it, shall be set aside, is, that the Lee judgment had been fully paid by Joseph E. Young long before- it was assigned to Eames. This allegation is not sustained by any proof whatever, but, on the contrary, it is expressly proven that it was and continued a valid judgment, and that it was assigned to Bend & Co. for a valuable consideration, and assigned by Bend & Co. to Eames for its face value. It is also alleged, in very general terms, in complainant’s bill in this case, that the institution of the chancery suit in aid of the execution at law, upon this Lee judgment, was in pursuance of an unlawful and fraudulent plan and scheme entered into between Walker and Eames to obtain title to the said railroad strip, which is referred to as mentioned in an earlier part of the bill, and in .examining the-antecedent parts of the bill, to ascertain what that unlawful and fraudulent scheme is alleged to have been, we find it alleged that “it was agreed between the said Eames and the said Walker that the said Walker should procure, purchase and obtain divers and sundry claims, in the nature of older judgments against him, the said Walker, and a certain mortgage,” (being one given by Walker to one Stewart,) and “that by and through sales on such judgments and mortgage so to be obtained, as aforesaid, the said title, ” (that is, the title to this private railroad street,) “could and would be obtained by the said Eames,” and that “it was some time. * * * about the 1st of January, 1876, that the aforementioned fraudulent and collusive plan and understanding between the said Eames and Walker was entered into, whereby it was attempted and undertaken by and between the said Eames and the said Walker, by and through the purchase and use of paid up and satisfied and fraudulent judgments," and that at that time it was agreed and arranged that when the title to the said railroad could be obtained by any of the means above referred to, the value of the same, as ascertained by sale or appraisal thereof, should be applied in payment and satisfaction of the aforesaid notes of the said Franklin C. Moorehead,—which are charged to be illegal, corrupt and void. The proofs show that this chancery suit in aid of the Lee judgment was not instituted in pursuance of a plan and scheme to obtain title to this railroad street, by having Walker purchase and obtain claims in the nature of older judgments against himself, or by having him buy the Stewart mortgage, or by the purchase and use, by any one, of paid up and satisfied and fraudulent judgments, but it was instituted to aid in the satisfaction of a valid judgment against Walker, which had not been paid by any one, and which had not been in any way satisfied, and which had been assigned by Lee to Bend & Co.; and by the latter to Eames. The grounds of attack by complainants upon this title under the Lee judgment, are not, therefore, sustained by the proofs, even were it assumed that such a contract or scheme as that charged in the bill had actually been made. The only vice in the scheme as alleged in the bill, rests in that part of it by which it is charged that Walker was to purchase the judgments with his own means, which, it is said, would have been a satisfaction of 'such judgment, and that in such case, proceedings under it would have been upon a satisfied judgment. Even if it be true that Eames had made a contract with Walker that he (Walker) should procure this judgment in that way, for.Eames’ use, that fact would not disqualify Eames, or render him incapable of purchasing the judgment with his own money, nor would it impair the validity of the judgment if Walker’s means were not in fact used in procuring it, or the validity of proceedings under such judgment, so long as the judgment was valid, and owned by Lee or his assignee, even if bought by Barnes with his own money,—unless, indeed, the whole was a scheme to cover the property from Walker’s creditors, and for his use, beyond the reach of such creditors. No proof in the case charges Barnes or his bank, or any owner of this Lee judgment, with any such actual fraud, or with any intention to defraud Walker’s creditors, or to cover the property for Walker, against any of his creditors.

The assignee in bankruptcy, in his cross-bill, also attacks this title under the Lee judgment by the allegation that the judgment was paid in full by Young, (who was a defendant in the judgment with Walker,) but that the judgment was allowed to remain of record unsatisfied, and that Barnes was advised by Walker of the existence of this judgment, and that for the purpose of carrying out a fraudulent combination and conspiracy before that time entered into between Barnes and Walker to cover tip and hold Walker’s property for his use, and to protect it from his other creditors, Barnes, without paying anything for the judgment, but pretending to be the owner thereof, procured the bill in chancery to be filed to obtain priority over older judgments, and obtained the decree, as above stated; and that pursuant to that decree this land was sold for about $6000, and a certificate of purchase issued, which was held by the bank until the sheriff’s deed was made; and that, in'’fact, at said sale no money was paid, and the “whole thing was a sham” and device to aid Walker in covering up and concealing his property, and keeping the same away from his creditors. The proofs utterly fail to sustain the allegation that the judgment had been paid by Young, or any one else, or that the sale was-a sham, and the proofs utterly fail to show any purpose on the part of Eames or his bank, or any owner of this judgment, to aid Walker in covering up or concealing his property, and keeping the same away from his creditors. The allegations of actual fraudulent intent on the part of Barnes, find no support in the proofs. The assignee in bankruptcy states that on January 4, 1876, when Walker and wife made to Barnes the quitclaim deed conveying to him all of Walker’s interest in this land, Barnes gave to Walker a writing, which is set out in full in his cross-bill, which, in argument, he insists renders the title of Barnes vicious. The only charge in the cross-bill of the assignee in bankruptcy, in relation to this contract, is, that it reduced to writing, in part, the understanding and agreement between Walker and Barnes, made -in pursuance of a fraudulent combination and conspiracy- of Eames and Walker touching the acquisition of title to the Lake county lands and to this private railroad street, for the benefit of Walker, as charged in the bill,—which charge was, that the purpose was to cover the property against Walker’s creditors, and secretly for his use. We have already said the proofs utterly fail to charge Eames with any purpose of this kind, or with actual fraud, as charged in the bill.

It is, however, strenuously insisted, in argument, that this contract, however honestly made, was, from its very nature, a fraud upon Walker’s creditors. To comprehend the meaning and get the true construction of this transaction we must keep in mind not only the words of the contract, but the facts surrounding the parties at the time, and which must have been in their contemplation. It must be remembered that by the arrangement made between Barnes and Walker, and Moorehead, at the sale of the Lake county land to Moorehead, on July 3, 1875, for $1517,900, and interest, it was agreed that the payment of the Moorehead notes should operate as a satisfaction of all of Walker’s remaining indebtedness to the bank,—which, as we have seen, amounted to about $60,000, —and that all moneys realized in the meantime by Barnes, for his bank, from collections upon these debts of Walker to the bank, should operate as credits on Moorehead’s paper. Walker, although without money, was the owner of a vast amount of property, still heavily incumbered, and still hoped to be able to make his property pay all his debts and leave to him a surplus, and so he had a deep interest in bringing about the full payment of the Moorehead notes, so that the sum of some $60,000 of his remaining indebtedness should thereby be cancelled. He had a lawful right, for this purpose, to apply any property or property interest under his control to the accomplishment of this laudable end. The first installment on this Moorehead paper, amounting to about $59,000, principal and interest, had fallen due January 3, 1876, and had not been paid by Moorehead, and Barnes contemplated proceedings to foreclose the trust deed upon the Lake county land. Walker hoped that if these proceedings could be delayed, Moorehead would be able to pay his notes, and that he (Walker) could, by arrangements for private sales of parts of the Lake county land, aid Moorehead to make the necessary payments. Barnes wanted all the additional security he could get, to render more probable the payment of the Moorehead notes. All these purposes were lawful. To that end, Barnes had already caused the execution on the Manning judgment to be levied upon this private railroad street, and the bill of Manning, against Walker and others, was pending, under which (whether wisely or not) priority was sought for this judgment over all older judgments, with the view of acquiring satisfaction of that judgment out of this railroad street, and with the expectation that a complete title to that property might be obtained. Walker, as one of the defendants, had been delaying the proceedings under the Manning bill, and Eames, by this time, had been advised that nothing could be attained by that bill as against older judgments, the owners of which had not been made parties. He knew there were prior liens of record, in the shape of mortgages and trust deeds, and in the shape of prior judgments, and that the Bawson judgment was the oldest, anil he believed that a title under that judgment would be the safest, and would be complete, save as to dower of Walker’s wife. Under these circumstances the transaction of January é, 1876, was enacted. In these lights let us examine it, and see what was its true character.

Walker conveyed his interest in the land, and his wife released'her dower. This interest of Walker was merely his right of redemption from prior mortgages, and even that right of redemption was subject to the prior lien of judgments of record, aggregating a sum greatly in excess of the value of the land if entirely free from incumbrance. This conveyance could not be a fraud against creditors with prior liens, for it was subject to such liens, and could not impair them. It was a conveyance Walker had a lawful and honest right to make as against debtors without liens, if made for an honest purpose, and upon valuable consideration. The debts which Eames eoiitrolled were valid and honest debts. Walker had a right lawfully to pay them with any property he held, or with his own money, if he had any, in preference to any other creditors having no liens upon such property or money. His doing so would not be dishonest. It is not essential to the honesty of a debtor, though overwhelmed with debt, that he shall be impartial as between his creditors, and not prefer one over another. What, then, is the true meaning of this transaction? Walker and wife convey his interest in this land, with the wife’s dower right, for the consideration that its value shall be credited upon these Moorehead riotes, with a view to aid in their ultimate payment, by which payment, when accomplished, Walker’s debts to this bank should be cancelled. • The conveyance was absolute and indefeasible, but the amount' of the credit remained to be ascertained by future contingencies, as stated in the paper; but in any event, the real value acquired by that deed was to be credited upon the Moorehead notes. This was the main contract. Ancillary to this main contract are other provisions in this contract. By these, Walker undertook to do all he could to perfect the title to this land in Eames, by bringing about judicial sales, or by bringing about the foreclosure of mortgages or deeds of trust, or by procuring the release of this land from prior incumbrances, whether by mortgage, trust deed or judgments, or in any other mode. -It was to his interest .to do'this without any contract, for it would swell the credit to be made on the Moorehead notes. He particularly undertook that within ninety days (that is, by April 3, 1876,) the Bawson judgment should be secured, by transfer or otherwise, to Eames; and that within six months (that is, by July 4, 1876,) this land should he cleared from the Stewart mortgage, by sale, foreclosure or release; and that within one year this land should be freed from the lien of the Price and Shelby mortgages. Eames agreed that if Walker should comply with these undertakings, he would give stay or delay On the Moorehead paper; but if Walker failed to accomplish these things, Eames was at liberty to proceed under the Moorehead deed of trust to Keep.

As already suggested, there was nothing unlawful or necessarily fraudulent in the making of the deed to Eames, and in his agreeing to credit its value on the Moorehead paper. It is plain no law forbade Walker from procuring a release of this property from the Stewart, Price and Shelby mortgages, by payment, or by any other honest means, or from inducing the holders to foreclose upon the property subject thereto. If there be any vice in any of Walker’s undertakings in that paper, it is that provision which relates to the Bawson judgment. By April 3, 1876, he undertook' or promised that the Bavrson judgment should be secured, by transfer or otherwise, to Eames. It is assumed by appellees that this means that Walker, with his own money, would pay this judgment, and instead of having satisfaction entered he would cause it to be transferred to Eames as a valid judgment, so that Eames, through' a sale on that judgment, though a nullity, could' acquire an apparent paramount title to this property. Do the words, by necessary implication, convey that meaning ? May they not reasonably be construed to mean that Walker should, by some lawful means other than paying off the judgment, induce Bawson to transfer the same to Eames, or otherwise give Eames the control of proceedings under that judgment, so that the land in question should be sold under that judgment, and thereby Bawson should get his money in satisfaction of the judgment, and Eames, as a purchaser at the sale, might get a paramount title to the land ? The nature of Walker’s title and right to this railroad street was at least peculiar, and it may be that Walker knew that Bawson did not wish to purchase the same on his judgment, and that Walker thought that by letting Bawson know that Eames desired to perfect a title thereto, and would bid the amount of the judgment if he could have it transferred to him, he could induce Bawson to transfer the judgment to Eames, and wait for his money until a sale of the land under the judgment. If this be the true meaning of the words, it is not perceived that there is anything unlawful or fraudulent in the provision as to the Bawson judgment.

Be this as it may, as it turned out, the title to this property, under the Lee judgment, does not depend upon that contract, and is entirely independent of it. Walker failed entirely to perform this undertaking in that contract, and came to Eames and notified him that he was unable to accomplish any of his undertakings in this regard, and Eames then undertook, himself, to procure title to this land under these prior judgments. If we assume that the undertaking on the part of Walker, under that contract in relation to the Bawson judgment, was unlawful and fraudulent, does it follow that these parties could not lawfully abandon it ? And having abandoned that provision, was Eames, after its abandonment, by the mere fact that he had made such a contract, incapacitated by law from afterwards adopting lawful means to acquire older judgments, and through them to acquire title to this land, if he desired so to do ? About a month after the expiration of the ninety days in which Walker was to secure to Eames the Bawson judgment, and after Walker had avowed his incapacity to do any of the things which were to secure delay in enforcing the collection of the Moorehead notes, Eames, on May 2, 1876, bought of Bend & Co. the Lee judgment, and proceeded at his own expense to procure title to this land under that judgment, •and did so. • It is not seen how the contract of January 4, 1876, can in any way affect the validity of the proceedings which were in fact had under the Lee judgment. That title being valid, and resting on a lien prior to the liens of complainants, is paramount to the claims and liens of appellees, and it was error in the circuit court to set the same aside.

It is insisted, however, that Eames did not abandon the provisions of the contract of January 4, 1876, and it is asked, why did he not then reconvey the property to Walker? The answer is plain. The purpose and consideration for the conveyance to Eames were not that Walker should perform his promise, but that the value of what was conveyed should, when ascertained, he applied as a credit on the Moorehead notes. This application was not to depend upon Walker fulfilling his undertakings in strengthening the title. The only thing that was to depend upon his successful performance of the executory part of the contract, was the undertaking of Eames to forbear in enforcing the payment of the Moorehead notes. By that contract Eames was to retain what was conveyed to him, whether Walker performed or not; and whether he performed or not, the value of that conveyance to Eames, when ascertained, was to be credited upon the Moorehead notes. It was not ascertained, in fact, until the sale to the railroad company was made/in 1879. Walker was, in any event, to have eighteen months to find a satisfactory purchaser, and if a purchaser at a price satisfactory to Walker could be found in that time, that was to fix the amount of the credit. If no such purchaser was found in eighteen months, Eames was to have his election to keep the property ' without sale, and credit its value, to be fixed by appraisers; or he might elect to sell for the best price he could get, and that price was to fix the amount of the credit, which credit, of course, would be the excess of that price over the money judiciously spent by Eames in clearing the title. This would give the net value of the conveyance by Walker to Eames, made January 4, 1876.

It is also contended that the fact that Walker, after this provision of that contract is claimed to have been abandoned, did, in fact, cooperate with Eames in his efforts to perfect title in Eames, although not by the purchase of any of the judgments with his (Walker’s) money, shows that this part of the contract was not abandoned. It is not perceived that any such inference should be drawn. Walker had the lawful right, by his advice to and negotiations for Eames, to aid him in accomplishing this end, -if the end was one Eames had .the lawful right to seek. Besides, Walker, aside from his promise to procure the transfer to Eames of the Bawson judgment, had an interest prompting him, very properly, to desire success to Eames, so that by the payment of the Moorehead notes his $60,000 indebtedness would be cancelled.

It is, however, strenuously insisted in argument, that this contract of January 4, 1876, rendered the deed of that date a mere mortgage, and that the assignee therefore has a right to redeem this railroad strip from the same. He does not ask, in his bill, to redeem, and unless the law is such that the parties were incapable of making the conveyance absolute, this position is not tenable. By the terms of that agreement it was clearly the intention to give an absolute title, from which there was to be no redemption. The intention of the parties clearly was that the title conveyed should, in any and every event, remain in Eames and his heirs and assigns forever, and that the value of the matter conveyed was to be credited on the Moorehead notes, and that value should he the net excess of the proceeds of the sale of the property over and above all cost to Eames in perfecting the title. This net value is shown, by the proofs, to have been about $67,000. Had this been a bill seeking to have the value of this property, as shown by its sale, credited upon the Moorehead notes, and thus to show that the Moorehead notes were fully paid, and hence the claims of the bank against Walker satisfied, another and different question would have been presented. But no such relief was sought in the bill, and plainly no such relief could have been granted on the facts. The balance due upon the Moorehead notes at the time of the sale to the railroad company, by the accumulation of interest,— after deducting the $100,000 credited for the sale under the Moore-he'ad deed of trust,—was about $89,874, while the value of the estate conveyed by the deed of Walker of January 4, 1876, to Eames, as ascertained by the sale by Eames to the railroad company, was only about $67,000, which would still leave a balance due on the Moorehead notes of about $22,874.

We find nothing in the contract of January 4, 1876, or in any other matter in this record, to impair the validity of the Lee judgment, or the title to this railroad street, acquired through the sale thereof upon the alias execution founded thereon. As against the complainants, and as against the assignee in bankruptcy, that title is paramount.

Under the view presented here, it .is unnecessary to discuss in detail the merits of the title acquired by Eames under the sheriff’s deed, founded upon the sale under the Moffat judgment. It may not be. amiss, however, to say we find no good cause to set that aside. " 9

Some technical objections are urged against the title under the Bawson and Moffat judgments, relating to the mode of advertising, and, perhaps, in other respects. Such technicalities can not prevail in a court of equity, where no injury seems to have been done to the rights of any one, and where the proceedings were had in good faith.

The judgment of the Appellate Court in these two appeals, affirming the decree of the circuit court, is therefore reversed, and the causes remanded to that court, with directions to reverse the decree of the circuit court and remand the causes to the circuit court, with directions to dismiss the cross-bill of Jenkins, assignee, etc., and also the bill of the original complainants, for want of equity.

Judgment reversed.

Mr. Justice Sheldon does not concur in the view that the deed and agreement of January 4, 1876, were not fraudulent and void as to creditors.

Scholeield, Ch. J., and Mulkey, J., dissenting.