Ewing v. Ainsworth

Mr. Justice Lawrence delivered the opinion of the Court: On the nineteenth of April, 1858, one Alberry executed to the appellee, Ainsworth, a mortgage on a tract of land in McLean county, already subject to a deed of trust which Alberry agreed to pay. Ewing and others, the plaintiffs in error, had obtained a judgment against Alberry in January, 1858, in the circuit court of Cook county, and on the twenty-eighth of May, 1859, an execution upon said judgment was levied on the mortgaged premises by the sheriff of McLean county, and a certificate of levy filed for record on the same day. Ainsworth foreclosed his mortgage in 1860, without making the plaintiffs in error parties, and in due time obtained a master’s deed and paid off the deed of trust, which was the oldest incumbrance. On the eighteenth of August, 1865, a venditioni exponas was issued from Cook county to the sheriff of McLean, under which the sheriff advertised the mortgaged premises for sale. Ainsworth then filed a bill to enjoin the sale, to which the plaintiffs in error answered and also filed a cross bill, claiming the right to redeem from the sale under the foreclosure, and asking for an account of rents and profits. The court rendered a decree refusing to require Ainsworth to account for rents and profits, and enjoining the sale until the plaintiffs in error should pay Ainsworth the amount bid by him at the mortgage sale, and also the amount paid by him in redeeming from the deed of trust. To this decree the judgment creditors have prosecuted a writ of error. From the foregoing statement it is apparent the plaintiffs in error have no grounds for complaining of this decree. They have no right of redemption on any terms, and therefore can not object to such terms as the complainant, in his original bill, thought proper to offer, and the court to decree. The judgment in favor of plaintiffs in error having been rendered in another county, was itself not a lien upon the land. The levy became a lien as soon as it was recorded, but it would be unreasonable to hold such a lien could continue after the lien of the judgment itself upon land situate in the county of its rendition had expired. This was substantially decided in Riggin v. Mulligan, 4 Gilm. 51. In that case, as ,in this, there had been a levy on real estate, and more than seven years from the rendition of the judgment, a venditioni exponas was issued upon said levy as in this case. The court held the lien was lost with the expiration of the seven years. Of course no additional duration can be given to the lien of the levy, where it is made in a foreign county. We also held in Tenney v. Hemenway, ante 97, that the lien of the execution depended on that of the judgment, and could not be prolonged, by a levy, beyond the seven years. In this case more than seven years had elapsed between the last day of the term at which the judgment was rendered, and the issue of the venditioni ; and under any view which can be taken, there was no lien upon the mortgaged premises, and no right to redeem. Decree affirmed.