Gorham v. Farson (119 Ill. 425, 1887)

Mr. Justice Scholfield

delivered the opinion of the Court:

By the terms of the written agreement entered into on the 1st day of May, A. D. 1881, between Preston, Kean & Co., on the one hand, and Gilbert A. Colby, on the other, there was no connection between the leasing and the sale of the property in controversy, farther than when the terms in regard to the sale were complied with, the lease, would expire. There was no stipulation, expressly, or in effect, that a failure to ¡iay rent according to the terms in regard to the rénting should bar or impair the right of Colby to purchase, or that any arrears for rent should be a charge upon the land as for so much purchase money. On the contrary, the sale was to be effected simply by paying and giving notes for the stipulated sums, as agreed upon as the price, within the time specified. Nor was the agreement that the sale should be at the end of three years, from the 1st day of May, A. D. 1881. The language is: “Colby further agrees, within three.years from the date hereof, to purchase the above described premises, and Payne” (who acted in behalf of Preston, Kean & Co.,) “to convey, or to cause to be conveyed, to Colby, at the sum of $15,000, to be paid as follows, to-wit: $5000 cash, and $5000 in one year and $5000 in two years from the date of said cash payment, with interest oh said deferred payments at the rate of six per cent per annum, payable annually, and said deferred payments- to be secured by a mortgage or trust deed on said premises. * * * Colby also agrees to buy, and Payne” (who acted in behalf of Preston, Kean & Co.,)' “to convey, or cause to be conveyed, to Colby, lots 6, 7 and 8, of block 4, of Day’s subdivision, * * * for the sum of $1300, and interest thereon, at the rate of six per cent per annum, from date, and to pay the same, principal and interest, within one year from date. ”

Gorham’s judgment became a lien on Colby’s interest in these lots. (Breed v. Gorham, 108 Ill. 81). The judgment having been obtained, and an execution having been issued thereon, within a year after its date, before the agreement was entered into, the lien attached the moment that Colby obtained his interest,—i. e., the moment that the agreement was made; and when that lien, was enforced by levy and sale, and the execution of a deed pursuant thereto, by the sheriff, {there having been no redemption,) Gorham’s title related back to the commencement of the lien, and embraced the interest that Colby then had in the property. Elder v. Derby, 98 Ill. 232; Hart et al. v. Wingart, 83 id. 284.

Since, as to the eight lots, comprising block 4, of Hubbard, Crocker & Stone’s addition, the agreement was, that Colby was to buy, and Preston, Kean & Co. were to convey, within, and not at, the termination of three years, it must follow, that it was competent for Colby to make the payment, and the promissory notes, and deed of trust securing them, for the deferred payments, and Preston, Kean & Co. to make the conveyance on the 1st day of October, A. D. 1881; and since it was competent for Colby, in order to protect his title,' or Gorham, in order to protect his lien, to pay off one or all of the promissory notes at any time after their execution, it is impossible that the substitution of promissory notes, running for the times those run which were executed on the 1st day of October, A. D. 1881, for the cash payment, and for promissory notes for the deferred payments, running for the times those were to run, as provided by the agreement of May 1, A. D. 1881, can have denied or impaired any rights which Gorham had by virtue of his lien. But the lots wrere, by the contract of May 1, to be charged only with the payment of the purchase money,—those in each block for their own cost, respectively; and the deferred payments were to bear only six per cent interest. To add, therefore, to the burden of these lots, $3000, for money borrowed by the firm of Colby, Gardner & Co., and $200 for back rent due from Colby, and to require the payment of seven per cent interest, instead-of six per cent, upon the deferred payments, was, to that extent, to impair and destroy Gorham’s lien, and was inadmissible; and the circuit court, therefore, properly held, that while the execution of the deed on the 1st day of October, A. D. 1881, by Preston, Kean & Co., to Colby, and the taking back by them, from him, of a mortgage, at the same time, did not enlarge the rights of Colby in the lots, beyond what they were under the contract of May 1, A. D. 1881, it was not admissible, since Gorham’s lien had attached before that time, to destroy or sensibly impair Colby’s interest in the lots as it was fixed by the agreement of May 1, A. D. 1881.

But the mortgage or deed of trust executed on the 1st of October, A. D. 1881, contains this clause, ■ among others: “That in case of default in the payment of the said notes, or any or either of them, or any part thereof, or in case of the breach of any of the covenants or agreements therein mentioned, it shall then be lawful for the said party of the second part,” (i.