Thornley v. Moore

Mr. Justice Mulkey delivered the opinion of the Court: Two questions are presented by the record for determination : First, do the facts show a valid redemption from the master’s sale ;• and second, assuming they do, and that the court therefore improperly awarded to appellee the writ of assistance, is the error one of which appellant can complain. While the law authorizing redemptions from judicial and execution sales is remedial in its character, and should not, therefore, be defeated on.mere technical grounds in cases fairly brought within its provisions, yet the right of redemption from such sales is purely statutory, and courts are not warranted in extending such right to a class of eases which the legislature, in its wisdom, has not seen proper to provide for. (Littler v. The People ex rel. 43 Ill. 188; Durley v. Davis, 69 id. 133.) The judgment debtor is given twelve months in which to exercise this right, and his judgment creditors, after his right is barred, are given three months additional time in which to exercise the same right. The appellant in the present ease having failed to redeem within the twelve months, it is clear that, so far as he is concerned, he then ceased to have any interest in or concern with the land itself, whatever interest he may have had in his creditors redeeming. The payment of the redemption money by Snell to the sheriff, for the use of appellee, was within the fifteen months, and the redemption was properly made, provided Snell was, at the time, a judgment creditor within the meaning of the act, and this depends upon whether the filing of the transcript of the judgment and proceedings before the justice with the circuit clerk, and causing the letters of the administratrix to be recorded in the office of the clerk of the circuit court, as heretofore stated, had the effect of making the justice’s judgment in effect a judgment of the circuit court, for it is clear none but judgment creditors in courts of record can exercise the right of redemption. It will be perceived by reference to section 95, of chapter 79, of the Eevised Statutes, entitled “Justices and Constables,” that the justice has no authority, on his own motion, to certify to the circuit clerk a transcript of a judgment and proceedings before him, for the purpose of making the same a judgment in the circuit court. This can only be done at the instance of the plaintiff in the judgment, unless by judicial legislation a provision authorizing the administrator of the plaintiff to cause such transcript to be certified to the clerk is interpolated into the act, which would be to provide for a case about which the statute is entirely silent: This, we are of opinion, the court has no right to do. At the time of certifjdng this transcript the administratrix had no power to enforce it before the justice by execution, even if the defendant in the judgment had been perfectly silent. The only mode of enforcing it there, would have been to have brought a new action on the judgment, in the administratrix’s name. Without such action, and the recovery of another judgment, it is clear she could not have had an execution in her own name. The judgment, by reason of the death of the plaintiff, had become wholly defective and inoperative as a judgment. ' It was wanting in an essential element, namely, a party plaintiff to enforce it. We do not think the statute contemplates the certifying of -a transcript of such a judgment to the clerk of the circuit court, with the view of making it a judgment in the circuit court. The statute applies only to such judgments as might be enforced in the justice’s court, but for the want of personal estate in the hands of the defendant, out of which to make the demand. The proper course to have pursued under the circumstances of this case, would have been for the administratrix to have brought an action, in her own name, in the circuit court, or if brought before a justice, after the return of an execution nulla bona, she might, as plaintiff in the judgment, have caused the transcript of the proceedings to be certified to the clerk of the circuit court, and in either case have placed herself or her assignee in a position to properly redeem from the master’s sale. But the parties have not seen proper to take either of these courses, and they should abide the consequences. But even if this view of the matter was not correct, and conceding the redemption was properly made, we are of opinion the appellant is not in a position to complain of the error of the court,—conceding it to be one,—in awarding the writ of assistance. As already stated, it is clear the appellant has no right in or concern with the premises in question. In contemplation of law it is a matter of perfect indifference to' him whether appellee or Snell occupies them, and if the redemption was legal the latter alone has a right to complain of being kept out of possession. It is true, as claimed by appellant, appellee was interested in having the premises to sell for as much as possible, 'and with this view perhaps he might, assuming the redemption to have been proper, have made an application for an order directing the master to proceed and sell the premises again, and on the court’s refusal to make such an order he might have taken advantage of it in this court. However this may be, it is clear that if the master or sheriff, after a redemption has been properly made, refuses or neglects to proceed to sell the premises again, as required by the statute, he and his sureties will be liable on his official bond to any one who may be injured thereby. For the reasons stated, we are of opinion there was no error in awarding the writ of assistance, and that the order of the circuit court should therefore be affirmed. Judgment affirmed.