Warren v. Iscarian Community

Treat, C. J. This was action of ejectment, brought by Warren against the Iscarian Community, to recover the possession of a tract of land in Hancock county. It was heard by the court on the following state of facts : Hunter ivas in possession of the premises in 1842, claiming title thereto under a deed from Foster; and he continued in possession until the 2d of May, 1846. On that day he sold the premises to Mosely, and conveyed the same to Mosely’s wife; and Mosely and wife went into possession under the conveyance, and subsequently transferred the possession to the defendants as their tenants. On the 18th of May, 1848, while Mosely and wife were in possession, Hamilton conveyed the premises to Evans in trust, for Mrs. Mosely; and on the 18th of November, 1851, by direction of Mosely and wife, Evans conveyed the premises to Kirkpatrick, who afterwards died intestate, and without issue, leaving his widow in possession; and the defendants Avere in possession of the premises, as tenants of the Avidow, Avhen this suit was commenced. On the 11th of June, 1845, Olney brought a suit against Hunter and six others, in the Hancock circuit court; and on the 31st of December following, he sued out an attachment in aid thereof, returnable to the May term, 1846, which was levied on the premises on the Gtli of January, 1846. Judgment Avas rendered in favor of Olney, at the May term, 1846, for $110 ; and under an execution issued thereon, the promises were sold to Hamilton on the 31st of October, 1846, and conveyed to him by the sheriff, on the 26th of March, 1848. On the 21st of January, 1846, Hibbard commenced a suit in the Hancock circuit court against Hunter and íavo others; and on the 6th of February following, he sued out an attachment in aid thereof, returnable to the ensuing May term, which was levied on the premises the day it issued. The venue Avas changed to the county of Rock Island, at the October term, 1846, on the application of the defendants; and at the September term, 1847, of the Rock Island circuit court, Hibbard recovered judgment for $654. Execution issued thereon in August, 1848, directed to the sheriff of Hancock county, under which the premises were sold to Kimball on the 23d of September thereafter, and conveyed by the sheriff to the plaintiff in this suit, as the assignee of the purchaser, on the 31st of November, 1852. On the foregoing evidence, the court found the issue in favor of the defendants, and rendered judgment accordingly. Where two or more attachments are issued against the same debtor, and made returnable to the same term of the court, the attaching creditors are entitled to share in the proceeds of the property attached, in the proportion of their respective demands. It is the duty of the court, in such case, to direct the clerk to make an estimate of the several amounts that the attaching creditors will be entitled to receive out of the proceeds of the estate attached, and certify the same to the sheriff, who must make payment accordingly. Rev. Stat. Chap.-9, Sec. 26. This estimate is not to be made until the property is sold, and the money is received by the sheriff. Stahl v. Webster, 11 Ill. 511. All of the creditors who sue out attachments, returnable to the same term of court, are entitled to participate in the distribution of the proceeds, although they may not obtain judgment at the same time. Rucker v. Fuller, 11 Ill. 223. The statute puts all such creditors upon equal footing. It makes the estate attached, a common fund for the payment of their debts. The proceeds are not to be distributed until all of the attachment suits are determined, for the aggregate amount of the indebtedness cannot be previously ascertained. If the property is sold before all of the attachments are disposed of, the court may properly instruct the sheriff to retain the proceeds until an order of distribution can be made. In the present case, both' attachments Avere issued against the estate of the same debtor, and made returnable to the same term of the,court. Olney obtained judgment at the return term, and the Arenue in the other case was changed to another county. The attached property was sold under Olney’s judgment, long before any judgment was recovered by Hibbard. No order of distribution could have been made at the time of the sale, for it could not then be knoAvn that Hibbard avouM succeed in obtaining judgment. The sheriff might, properly, have been directed to withhold the proceeds until the further order of the court. The result shoAved that Hibbard was entitled, equally with Olney, to participate in the proceeds of the sale. But this is not between the attaching creditors. It is a contract between the different purchasers under the judgments. In our opinion, the purchaser, at the first sale, is entitled to hold the premises. He acquired all the interest that Hunter had therein, on the 6th of January, 1846. The execution authorized the sheriff to sell that interest, and it was not the business of the purchaser to look to the application of the purchase money. The sale was of the entire estate of the debtor in the premises, and not of any particular part of that estate. It was made for the benefit of both the attaching creditors, and not for the benefit of Olney only. The common security was thereby converted into money. The mere fact that no order was made for the distribution of the proceeds, should not operate to the prejudice of the purchaser. If one of the attaching creditors has obtained more than his share of the fund, the matter must be adjusted in a proceeding between them. The judgment must be affirmed. Judgment affirmed.