Parker v. Shannon (137 Ill. 376, 1891)

Mr. Justice Magruder.

delivered the opinion of the Court

This is a bill filed on September 22, 1888, in the Circuit, Court of DuPage County by the appellant against the appellee for the purpose of enjoining the prosecution of an ejectmentsuit, commenced in said court on June 29, 1888, by appellee, against appellant to recover the possession of Lots 1, 4, 5,' and 8 in Block 7 in the “original town of Hinsdale” in said county, and also for the purpose of setting aside certain deeds, as clouds upon the title of appellant. After bearing had upon the bill, as originally filed and as subsequently amended, and. the answer thereto and replication to the answer, and upon proofs oral and documentary, the Circuit Court found for the-defendant below, the appellee here, and dismissed the bill for want of equity.

In a suit begun on the 31st day of October, 1867, in the-Superior Court of Chicago by Joseph H. Tiffany for the use of M. J. Dunne against John Parker, the appellant here and the-complainant below, judgment was rendered, on April 17,1869, for $571.49 against Parker. Upon appeal to this Court the-judgment was affirmed, as will be seen by reference to the case-of Parker v. Tiffany, 52 Ill. 286.

An execution, dated June 23, 1870, was issued upon said, judgment from said Superior Court to the Sheriff of DuPage' County. A certificate of levy, dated June 30,1870, and signed by “Charles Binehart Sheriff of DuPage County,” certifying-that, by virtue of said “execution and fee bill” so issued, the Sheriff had levied upon Lots 4, 5 and 1, in Block 7 “in the original town of Hinsdale, ” was filed in the recorder’s office of that county on June 30, 1870. Afterwards on September 21, 1870, there was recorded in said recorder’s office another certificate of levy, dated September 21,1870, signed by same Sheriff by “W. James Cowan, Deputy,” certifying that, by virtue of “an execution issued out of the Superior Court,” etc., (describing the same execution of June 23, 1870, above named,) the Sheriff had levied upon Lots 1, 4, 5 and 8 in Block 7 in the “town of village of Hinsdale.”

On February 2,1872, there was filed in said recorder’s office a certificate of sale, dated October 29, 1870, purporting to be signed by Charles Rinehart Sheriff of said county, certifying, that, by virtue of said execution of June 23, 1870, he did on the 29th day of October, 1870, at the hour’of 5 o’clock P. M. offer at public sale Lots 1, 4, 5 and 8 in block 7 in “the village of Hinsdale,” and “M. J. Dunne having bid the sum of $20.00, he being the highest bidder at sale became the purchaser,” and that if the “property shall not be redeemed within fifteen months from this date according to law, the said M. J. Dunne will be entitled to a deed,” etc.

On February 16, 1872, there was recorded in said recorder’s office a Sheriff’s deed, dated February 14, 1872, executed by John Kline, Sheriff of said county (as successor to Rinehart,) reciting, that Tiffany for the use of said Dunne did, at the June Term, 1870, of said Superior Court recover a judgment for the sum of ...... dollars and costs of suit against Parker, etc., upon which the execution aforesaid was issued, and levied by Rinebart upon said lots, and that “the same were struck off and sold to M. J. Dunne * * * he being the highest and best bidder therefor,” and thereby conveying to Dunne, in consideration of the premises and the sum of $20.00, said four lots in the “village of Hinsdale.”

Dunne made a deed dated June 3, 1876, and recorded June 6,1876, to Dell Stuart of the four lots in “the village of Hinsdale.” By deed dated March 13, 1879, and recorded June 19, 1879, Stuart conveyed the four lots in the “village” to Edwin F. Bayley. By deed dated May 7, 1883, and recorded May 15, 1883, Bayley conveyed the lots described as being in the-' “village” to Shannon, the defendant below. Also, one Samuel B. Munson by a deed dated November 19,1883, and recorded November 26, 1883, conveyed lots 1 and 4 in Block 7 in the-“original town of Hinsdale” to the defendant Shannon. The deeds thus described beginning with the Sheriff’s deed to Dunne are the deeds, which the present bill seeks to set aside.

In 1884 Shannon filed a bill against Parker and his wife to enjoin them from interfering with the lots, etc. Upon this ■bill a decree was entered in favor of Shannon, which was-brought to this court by writ of error and reversed, as will be seen by reference to Parker et al. v. Shannon, 114 Ill. 192, A second decree entered in the same case was again reversed by this court, and the cause was remanded for further proceedings, as will appear from Parker et al. v. Shannon, 121 Ill, 452. Since the last reversal Shannon seems to have abandoned the chancery proceeding and brought ejectment as above stated.

When the four lots in question were sold at the Sheriff’s, sale for $20.00, they were worth about $5000.00. Here was gross inadequacy of price; and, while inadequacy of price' alone may not justify a court of chancery in setting aside a. judicial sale, yet equity will seize hold of serious irregularities: in the mode of sale, or of any circumstances of unfairness, towards the debtor, in order to grant relief in a case where-such gross inadequacy is shown to exist. Such is the settled ■ doctrine of this Court, and we deem it sufficient merely to- . state it here, referring for its further amplification and illustration to our former decisions. (Thomas v. Hebenstreit, 68 Ill. 115; Hamilton v. Quimby, 46 id. 90; Morris v. Robey, 73 id. 462; Roseman v. Miller, 84 id. 297; Berry v. Lovi, 107 id. 612.) It, therefore, becomes necessary to examine into the facts connected with the Sheriff’s sale to see whether there are any evidences of irregularity and unfairness.

The execution of June 23, 1870, was the second execution issued upon the judgment, though it was the first that was issued to DuPage County. The great fire, of October, 1871, destroyed all the records and papers in the offices of the clerk of the Superior Court of Chicago and of the Sheriff of Cook. County. None of the executions issued from that court can be produced. It can not be learned what return the Sheriff made upon the execution of June 23 after the alleged sale on October 29, 1870. The only record evidence consists of a transcript of a judgment docket, kept by certain abstract makers in Chicago and consisting of minutes and memoranda taken by them before the fire from the files of said court. This transcript, which is admitted in evidence by agreement, contains the following minute: “No. of execution, 14815; .Date of execution, June 23, 1870; return of execution, Ret. sat. for $7.95 from DuPage Co.” From this it would appear that the execution was returned satisfied for $7.95.

The sale appears to have been made by Cowan, as deputy for Rinehart late in the day on October 29. Nobody was present except Cowan and Dunne. Humphreyville & Dunne were-the attorneys, who obtained the judgment for Tiffany, and had an arrangement with him by which they were to have one-half of what should be recovered in the suit. Dunne did not bid the $20.00 for Tiffany, but for himself. There is no evi- ' dence that he actually paid the $20.00.

The contention of Parker is, that he paid the whole amount of the judgment and costs, and that he never knew of any sale of his property under any execution until nearly six years after October 29, 1870. In support of his claim that he paid the ' judgment, he produces the following receipt: “Hinsdale Dec. 8, 1870. Received of John Parker $695.00 to apply in settle,ment of execution and costs in case of J. H. Tiffany vs. John Parker. (Signed) John Kline, Sheriff of DuPage County, per W. James Cowan, Dept.” Another receipt is also produced, dated December 15, 1870, and signed by Humphreyville &- Dunne, as the plaintiff’s attorneys, acknowledging the receipt from Kline, sheriff, of $670.16 “in satisfaction of an execution in favor of J. H. Tiffany vs. John Parker.” It is not denied that Parker did pay the Sheriff $695.00 on December 8, 1870. Einehart had gone out of office on December 5, 1870, and Kline had succeeded him, but Cowan seems to have continued to be deputy.

The transcript above referred to shows, that another execution, dated November 10,1870, was issued to DuPage County, and returned satisfied in full. Still another execution, dated November 12,1870, was issued from this Court for the recovery of Tiffany’s costs amounting to $20.48. This latter execution was returned satisfied in full by payment to plaintiff’s attorneys.' The payment of the $695.00 was made by Parker tooCowan at the former’s house in Hinsdale after dark on the evening of December 8,1870. Parker swears, that Cowan did not tell him of any sale that had been made under a former execution, but figured up what he claimed to be due; that he paid Cowan $695.00 in full satisfaction of the whole judgment. After a careful examination of the evidence, we are satisfied that Parker’s testimony is true. Cowan, the deputy, left Du-Page County in May, 1871, and went to Wisconsin where he has lived ever since. He recollects very little about the transactions, and is very indefinite in all his statements.

Many circumstances tend to confirm Parker. . There was evidently an effort made to conceal the fact of the sale. Although Humphreyville was entitled to one fourth of the amount paid upon the judgment, he swears that Dunne never paid him a cent; that no execution was ever issued upon the judgment to his knowledge; that the business docket of the firm did not show the issuance of any execution or any sale of property under the judgment; that Tiffany was his client, but he is unable to say whether Tiffany was paid anything by Dunne or not. Humphreyville did not know anything about the sale, or the payment of the $695.00 to Dunne, until 1889. Tiffany is dead. Dunne says that he paid Tiffany in his life time his share of the recovery, but never told him of the sale.

The certificate of sale was not recorded in DuPage County until after the time of redemption expired. The time of redemption expired on January 29,1872, and no certificate was recorded until February 2, 1872, about two weeks before the Sheriff’s deed was recorded. The statute required the Sheriff • 4o record the duplicate certificate within ten days from the sale, and also required that such certificate should state not ■only the sum paid or bid at the sale, but also “the time -when the purchaser will be entitled to a deed.” The object of re■cording the certificate is to give notice of the sale, so that the ■debtor and his creditors may redeem. Such notice is especially necessary, where the execution issues upon a judgment rendered in one county, and the land sold lies in another county, •as was the case here. A notice on February 2, 1872, that the purchaser at the sheriff’s sale will be entitled to a deed on January 29 or 30, 1872, can be of no use to the debtor or his ■creditors. Before the notice was recorded, the right to redeem was gone. (Briscoe v. York, 53 Ill. 484; Berry v. Lovi, supra; Thomas v. Hebenstreit, supra.) The failure to record thq duplicate certificate for so long a time tends to show, that, after"the settlement with Parker on December 8, 1870, the sale was abandoned, or regarded as cancelled by redemption, or purposely concealed so that Parker could not redeem.

The unfairness of the proceeding is manifest when the amount paid by Parker is considered. On December 8,1870, all that it was necessary for him to pay to redeem from the sale was $20.25. We are satisfied that on that day ha paid at least $20.25 over and above what was actually due from Trim upon the execution of November 10. In justice and conscience, it was the duty of the Sheriff to file a redemption certificate as the statute required. If Parker knew of this sale