Trapp v. Off

Mr. Justice Magruder delivered the opinion of the court: The decree of the circuit court, to review which the writ of error was sued out from the Appellate Court, was a decree for the foreclosure of two mortgages, and for the enforcement of a judgment lien. Off, by his original and supplemental bills, sought to foreclose two mortgages, executed by Kate Hulitt and Nathan Hulitt. The decree held, that one of these mortgages, purchased by Off from Rohrer, was a prior lien upon the mortgaged premises, superior to both the judgment of Mariah Trapp and to the other mortgage, held by Off and executed directly to himself. The decree held, that the judgment of Mariah Trapp against Nathan Hulitt was a prior lien to the mortgage, executed by the Hulitts directly to Off. Substantially, and without going into detail, the Rohrer mortgage for §403.50 was the first li'en. The judgment of Mariah Trapp for §1252.06 was the next lien, so far as the interest of Nathan Hulitt in the property was concerned. The other mortgage, upon which §860.00 was due, was the third and last lien, subject to the other two liens above mentioned. The decree of the court directed a sale of the premises, and that, out of the proceeds, the §403.50, due upon the first mortgage, should be paid, and that the surplus, if any, should be brought into court without delay to abide the further order of the court in distribution, according to the order of priorities as above declared. It thus appears, that the decree was favorable to Off, so far as his first mortgage was concerned, but unfavorable to him so far as the last mortgage was concerned. The decree was favorable to Mariah Trapp in that her judgment was given priority over the second mortgage, but unfavorable to her in that it was postponed to the first mortgage. The decree of sale was entered on October 1, 1894. This writ of error was sued out on May 16, 1899, nearly five years after the entry of the decree. The pleas, which set up release of error on the part of Off, the plaintiff in error in the Appellate Court, show that a sale of the property was made under the decree, and that the same was bid in by Off, and that he obtained a certificate of purchase and subsequently a master’s deed, conveying to him the mortgaged property. The third plea shows clearly, that the decree was not executed according to its terms. If it had been executed according to its terms, the proceeds of sale, after paying off the first mortgage of §403.50 and interest, would have been paid into court. The property was struck off .at the sale for §1415.54, and there was a surplus over and above the amount necessary to pay off the first mortgage and interest. Mariah Trapp was unquestionably entitled, according to the terms of the decree, to have a portion of this surplus applied upon her judgment. But no surplus was paid into court; the whole amount, bid at the sale, was applied upon the two mortgages owned by Off, and the judgment of Mariah Trapp was cut out entirely. The amount of the bid, §1415.54, was the exact amount due upon the two mortgages. The third plea explains why and how this was done. The third plea alleges that, on the 19th day of October, 1894, plaintiff in error caused a certain instrument in writing to be made, and, on the 12th day of November, A. D. 1894, caused that instrument to be filed in the cause, and thereby sought and attempted to remove the lien of Mariah Trapp’s execution and the lien of the decree in her favor on said land. The averment of the third plea is, not that Mariah Trapp executed this instrument in writing, but that Off, plaintiff in error, caused it to be made. Nor is the averment that Mariah Trapp caused it to be filed in the cause, but that plaintiff in error, Off, caused it to be filed. What was that instrument in writing? It purported to be signed by Charles J. Off, complainant, by his attorneys, and by Mariah Trapp by M. F. Hufford, her attorney; and, by its terms, Mariah Trapp released to Off all her interest of every kind in the subject matter of the suit, and all her claim of every kind to the forty acres in question. By its terms, she consented that Off might have a decree for all the purchase money to be derived from the sale, and she released the land from all claims under her judgment and execution. By its terms, she consented that Off should take the land free from the lien of her execution. The instrument recites, that the consideration for its execution was §60.00 paid by Off to Mariah Trapp. It is evident that, if this instrument in writing was really executed by Mariah Trapp and was binding upon her, she gave away and surrendered all her interest in the decree. The third plea then proceeds to aver that, thereafter on December 22,1894, a sale was made under the decree of the premises in question, and that the sale was “made for the benefit of said plaintiff in error and at his direct instance and request.” Of course, when the instrument in question was filed in the cause, the master, making the sale, would necessarily conclude that Mariah Trapp had no further interest in the matter. Accordingly, when he ■made the sale, the property was struck off to Off for the amounts due upon his two mortgages. As he was the complainant in the suit, and owned the decree so far as it applied to these two mortgages, it was not necessary for him to pay any money upon his bid except costs, fees and commissions, but he was credited upon the decree with the amounts due to him upon the two mortgages, and a certificate of purchase was issued to him for the amount of his bid. By obtaining the instrument, dated October 19, 1894, and filing it in the cause, he succeeded in having a sale made, which cut out the lien of Mariah Trapp, and obtained title to the land by simply bidding the amount, which was due to him upon both mortgages under the decree. The third plea, which set up these facts, was a good plea of release of errors. It was held by the Appellate Court to be a good plea, because the demurrer filed to it by the plaintiff in error was overruled by the Appellate Court. Where a party accepts the benefit of a decree, he cannot afterwards prosecute error to reverse it; such acceptance operates as an estoppel and may be treated as a release of errors. (Moore v. Williams, 132 Ill. 591, and cases there cited). In Thomas v. Negus, 2 Gilm. 700, we said (p. 703): “A party ought not to receive the benefit of a decree, and then complain that it is erroneous. If dissatisfied with it, he should abstain from doing any act, which may change the situation, or impair the right of the parties in the event of its reversal. If the decree is to be reversed, the parties ought to be restored to the position they occupied before it was rendered. Their rights should be reciprocal. Any other rule might be productive of great injustice.” In Ruckman v. Alwood, 44 Ill. 183, we said (p. 185): “It is the settled doctrine of this court, that where a party, recovering a judgment or decree, accepts the benefits thereof voluntarily and knowing the facts, he is estopped to afterward reverse the judgment or decree on error; that the acceptance operates as and may be pleaded as a release of errors.” (See also Corwin v. Shoup, 76 Ill. 246). Where a party has submitted to the decree and acted under it and obtained an advantage, he cannot be permitted to ascertain the practical effect upon his rights by one course of proceeding, and then, when dissatisfied with the result, adopt another. (McElwain v. Willis, 9 Wend. 548). In the case at bar, Off proceeded under the decree and obtained the land. His conduct, after the entry of the decree and before suing out the present writ of error, shows that he submitted to the decree and obtained an advantage under it, and because of his acts the parties cannot now be placed in statu quo. But in the Appellate Court the plaintiff in error filed a replication to the plea, and to this replication Trapp, the administrator, defendant in error in the Appellate Court, demurred. The Appellate Court overruled the demurrer to the replication, and the question arises whether this ruling was correct or not. “A replication to a plea of release of errors must deny, or confess and avoid, the cause of release set up by the plea.” (2 Cyclopedia of Law and Procedure, p. 1008; McCutcheon v. Sigerson, 34 Mo. 280). The replication to such a plea must present a valid answer to it. (Morgan v. Ladd, 2 Gilm. 414). Where the replication to a plea of release of errors presents no valid answer to the plea, and there is a demurrer to the replication, the case will be considered as if on demurrer to the plea; and if the demurrer to the replication is sustained, the writ of error must be dismissed. (Thomas v. Negus, supra; Morgan v. Ladd, supra). The replication in this case presents no valid answer to the plea. It introduces no new matter in the case, which changes the character of the defense presented by the plea. The replication assumes that Trapp, administrator, in his pleas of release of errors, states that the decree was fully carried out, and then proceeds to set forth the substance of a bill filed in January, 1898, by Mariah Trapp, stating that the object of said bill was to carry into effect the provisions of said decree. An inspection of the pleas of release of error; filed in the Appellate Court, does not sustain the opinion expressed by the pleader that “the pleas fraudulently and falsely state that the decree had been fully carried out.” Nothing is admitted by a demurrer except that which is well pleaded. Pacts well stated are admitted, but not conclusions of the pleader. The demurrer filed by Trapp, administrator, to the replication to the pleas, does not admit that they contain any fraudulent or false statements as to the carrying out of the decree. The third plea shows on its face, that the decree was not carried out, but that, by reason of an instrument in writing procured by Off, the master making the sale failed to carry out the decree. In other words, instead of requiring all of the bid, beyond the amount necessary to pay the first mortgage, to be paid into court, the master permitted Off, who bid at the sale, to take the property by bidding only the amount of his two mortgages, and thus to cut out the lien of the judgment of Mariah Trapp. These allegations of the plea do not amount to a statement that the decree was carried out according to its terms, but, on the contrary, that it was improperly carried out in opposition to its terms. The replication lays great stress upon the alleged fact, that the “moneys, derived from the said sale of the real estate, have not been brought into court in pursuanee of the order of said court, and that said decree has not otherwise been executed.” This allegation in the replication is no denial of any statement made in the pleas, because the third plea expressly sets up and states that no money was brought into court, aud gives the reason why it was not brought into court. Off, in his replication, could not urge in his own favor, or to his own advantage, that the proceeds of the sale had not been brought into court, because the failure to bring them into court was the result of his obtaining and filing a paper, which purported to be a release of all Mariah Trapp’s interest in the land under her judgment. The replication sets up that in January, 1898, Mariah Trapp filed a bill for the purpose of having the decree executed, and its provisions carried into effect. Off sets out this bill in hcec verba in his replication. In that bill Mariah Trapp charges, that she never gave Hufford any authority to sign or execute in her name the instrument in writing, which released her interest in the land under her judgment. She also alleges in her bill, that she did not learn until December 9, 1897, that any such instrument was executed in her name, and then learned for the first time of its existence. The bill furthermore alleges, that she never in any way or manner ratified or accepted the instrument in question, and charges that said instrument was wholly void and fraudulent. If the allegations of the bill are true, she was imposed upon and defrauded. She was robbed of all the benefits of her decree by an instrument executed in her name, which she never authorized to be executed. Off derived the benefit and advantage from this instrument, which has already been stated and set forth, by obtaining a deed to the land at the sale under the decree without paying any money into court, and without being embarrassed by the Men of the judgment of Mariah Trapp. The bill states, that the decree had not been carried into effect according to its terms by reason of the said paper, which purported to be an agreement with her. The bill also sets forth that Off refuses to concur in and perform the decree. Nowhere in his replication does Off either deny or admit that the allegations of this bill are true. So far as appears to the contrary, he is contending against the granting of the relief prayed for by the bill in question. So far as his replication shows, he has assumed the attitude of standing by the instrument in writing, which is set up in the third plea, because the bill alleges that he refuses to concur in and perform the decree, and he does not deny the truth of this allegation. The mere fact, that Mariah Trapp, or Trapp, administrator, charges the written instrument of October 19, 1894, to have been obtained by fraud, does not affect the question as to Off’s right to claim that there has been no release of errors on his part. He made use of the instrument in question in the manner already stated, and derived substantial benefit from the decree because of that instrument. To permit him to thus occupy the position that the instrument was valid, and that he was justified in obtaining a deed to the land in the manner in which he did obtain it, and, at the same time, to permit him to seek a reversal of the decree, of which he has thus taken advantage, by a writ of error, would be to permit him not only to occupy inconsistent positions, but to take advantage of his own wrong. We are of the opinion that the demurrer to the replication should have been sustained. Accordingly, the judgment of the Appellate Court is reversed, and the cause is remanded to that court with directions to sustain the demurrer to the replication, and to dismiss the writ of error. Reversed and remanded. This case was originally assigned to the late Justice Phillips, but, as he prepared no opinion, the case has been re-assigned.