Holmes v. Shaver

Mr. Justice Breese delivered the opinion of the Court: This was a bill in chancery, in the Carroll circuit court, by Denison F. Holmes, complainant, against Nicholas N. Shaver, defendant, to restrain proceedings at law, instituted by defendant against complainant, for the recovery of the amount of two promissory notes executed by the latter to the former. On demurrer to the bill, the injunction was dissolved and the bill dismissed. Complainant appeals. It appears one Henry Smith, in 1850, executed to the trustees of schools of township 23 north, range 7 east, a mortgage on the north-east quarter of section seven (7), in that township and range, which was duly recorded, and, to foreclose the same, they sued out a scire facias on the 10th of September, 1859, and such proceedings were had thereon that a judgment was rendered in favor of the trustees, and a special execution ordered to sell the mortgaged premises. A sale was had, and appellant became the purchaser. Appellee, having obtained two separate judgments against Smith, the mortgage debtor, before the time of redemption expired, paid to the sheriff the amount of appellant’s bid, with interest, and at the same time placed the executions on these two judgments in the hands of the sheriff, who levied them on this north-east seven, and, when offered for sale, appellant was the highest bidder, he bidding the amount of appellee’s two judgments. An agreement was then made by appellant and appellee that, in consideration the executions should be returned .satisfied, appellant would execute his notes to appellee for the amount of the executions. The execution was returned satisfied, a certificate of purchase executed to appellant, and the notes in suit were executed by appellant to appellee. In lieu of paying the money on his bid for the lands, the execution creditor agreed to take these notes. On this showing, no court could raise an equity on behalf of the maker of the notes, the appellant here. But appellant says—and he makes the proceedings a part of his bill—that one Franklin Smith and Latham Conwell, claiming a lien on this land through a mortgage executed by Henry Smith to the Racine and Mississippi Railroad Company, on the 9th of April, 1856, have commenced a suit in equity to set aside these judgments, executions, and sales made by the trustees of schools and by appellee, and if they succeed, he will have received no consideration for his notes executed to appellee, and now in suit. On this additional showing, it is impossible to perceive where the equity of appellant arises. Evidently, he received from appellee all he contracted for. What does it matter, in a court of equity or in a court of law, if the title of a purchaser at a judicial sale, as this was, should fail ? Can equity relieve, in the absence of all fraud* in such a case? The maxim there, as at law,is caveat emptor. The buyer must look out himself. The books are full of cases where this maxim has always been applied, and in this court especially. Among the latest are Bassett v. Lockard, 60 Ill. 164, and Bishop v. O’Conner, 69 ib. 431. The rule governing a purchase at a judicial sale, is, that there is no warranty, and the validity of the title must be at the purchaser’s own risk. The argument of appellant directed to a want of diligence by appellee to give notice of his judgment obtained in Ogle county, against Smith, by failing to file it in Carroll county, has no force here, as there are no intervening creditors to be affected thereby. We see nothing in this record of an equitable nature of which appellant can claim a benefit. There is no equity in his case, and the bill was properly dismissed, and the decree dismissing it is affirmed.' Decree affirmed.