Strauss v. Tuckhorn

Mr. Chief Justice Magruder delivered the opinion of the court: The master’s sale, referred to in the statement preceding this opinion, was made to Sophia Solomon, assignee of Berman Friend, on February 25, 1893, for §6404.43, which amount was distributed by the master; and after-wards the sale was confirmed by the court. The twelve months, during which Emma Engel, Goldie Cohen and Joel Jackson, the owners of the equity of "redemption, were entitled to redeem the property from this master’s sale, expired on February 25, 1894. Eo redemption was made from the master’s sale by the owners of the equity of redemption. Under the statute, the judgment creditors of such owners were entitled to redeem said premises at any time within three months after February 25, 1894, to-wit, up to and including May 25, 1894. .During the three months, and on February 28, 1894, a judgment by confession was entered in favor of Gabriel J. Nor den against the owners of said equity of redemption, Emma Engel, Goldie Cohen and Joel J. Jackson. This judgment was assigned to the appellee, Caroline Tuckhorn, on May 23, 1894, and on that day an alias execution was issued, under which the sheriff sold the premises to Caroline Tuckhorn for the amount of the redemption money, interest and costs to date of sale, and a deed was duly issued to her by the sheriff, she having previously paid to the sheriff the sum of $7084.23, the amount for which the premises had been sold at the master’s sale, with interest, etc. If the redemption made by the appellee, Tuckhorn, under her judgment, was a legal 'and valid redemption, then the appellant, David Strauss, as the assignee of the master’s certificate of sale, was not entitled to a master’s deed in accordance with the prayer of his intervening petition, and the court below committed no error in dismissing such petition. ' Counsel for appellant seem to claim that there was some fraud in the confession of the judgment, because it was confessed for the express purpose of enabling the judgment creditor to redeem. But this court has held that a debtor may confess a judgment expressly for the purpose of enabling" the judgment creditor to redeem, if there is a bona fide indebtedness existing and due to such creditor. The fact, that a debtor confesses judgment in favor of the creditor for the express purpose of enabling the latter to redeem, will not invalidate the redemption, if there is no fraud in the consideration of the note, upon which the judgment is entered. Even though the judgment is confessed for the purpose of creating a judgment, under which a redemption may be made, the redemption is not thereby made unlawful or inequitable. None of the legal or equitable rights of the first purchaser are thereby violated. When Sophia Solomon purchased the land at the master’s sale, she thereby acquired the alternative right either to receive the redemption money, which might be paid to the sheriff by Engel, Cohen and Jackson, in case they redeemed within the twelve months, or which might be paid by any junior judgment creditor after the expiration of twelve months and before the expiration of fifteen months; or, in case no such redemption should be madé either by the owners of the equity of redemption or by any judgment creditor, then she had a right to a master’s deed. But, by her purchase at the master’s sale, she acquired no title to the land, either legal or equitable. (Phillips v. Demoss, 14 Ill. 410; Martin v. Judd, 60 id. 78; Arnold v. Gifford, 62 id. 249; Karnes v. Lloyd,, 52 id. 113). We have said that “a liberal construction is to be given to our redemption laws, to the end that the property of the debtor may pay as many of the debtor’s liabilities as possible.” (Whitehead v. Hall, 148 Ill. 255). It makes no difference, therefore, that Engel, Cohen and Jackson may have confessed judgment in favor of their attorney, Worden, for the express purpose of enabling a redemption to be effected, provided there was a valid and legal consideration for the debt, upon which the judgment was confessed. Testimony was introduced with a view of showing the consideration of the judgment note, executed by the owners of the equity of redemption to their attorney, Gabriel J. Worden. It is unnecessary to discuss or review this testimony at large. It is sufficient to say that, for some eight or ten years, Worden had been the attorney of these cross-complainants, Engel, Cohen and Jackson;, that they were indebted to him for legal services, rendered in past litigation, and in litigation in reference to the property here in controversy. The legal services so rendered constituted a valid consideration for the judgment note, which was executed by them. It is undoubtedly true that, if a judgment be entered when no indebtedness actually exists, such judgment cannot be used for the purpose of effecting a redemption. (Wetherbee v. Fitch, 117 Ill. 67). But it is not true, as matter of fact, that here no indebtedness existed; on the contrary, as we read the evidence, there was a bona fide indebtedness existing from the owners of the equity of redemption to the creditor, in whose favor the judgment was confessed. The master in chancery, to whom the issue, made by the intervening "petition and the answer of the appellee thereto, was referred, found that the judgment note was executed for. a bona fide indebtedness, and we think that his finding is sustained by the proofs, accompanying his report. We are of the opinion, that the redemption, accomplished through the judgment, was a valid redemption, and that the master was justified in refusing to execute a master’s deed to appellant. • The delay of appellant in filing his petition amounts to such laches, as fails to entitle him to the relief which he seeks. The fifteen months, allowed for the redemption of these premises, expired on May 25, 1894. The deed made to appellee, Tuckhorn, as the purchaser at the sheriff’s sale, was executed on June 19, 1894. Appellant had notice within a very short time after the time of redemption had expired, if not at that time, that a redemption had been effected under the judgment entered in favor of Norden, and assigned to the appellee, Tuckhorn. He waited, however, until February 16,1900, nearly six years after the time of redemption expired, before filing his intervening petition, or taking any steps to obtain a master’s deed. The superior court, which rendered the judgment by confession, had jurisdiction over the subject matter and over the parties. There is no question in regard to its jurisdiction. All the presumptions are in favor of the validity of judgments-by confession, as well as of other judgments, especially when, as is the case here, the judgment is collaterally attacked. (Adam v. Arnold, 86 Ill. 185; Thomas v. Mueller, 106 id. 36; Farwell v. Huston, 151 id. 239; Hansen v. Schlesinger, 125 id. 230). If the judgment had been entered upon a note, which had no consideration, there is no reason why appellant should not have filed his bill or petition to set the judgment aside, as soon as he learned of the same. Section 30 of the chapter in relation to judgments provides that, when the premises, mentioned in any certificate of sale, shall not be redeemed in pursuance of law, the legal holder of the certificate shall be entitled to a deed therefor at any time within five years from the expiration of the time of redemption. The same section also provides that, “when such deed is not taken within the time limited by this act, the certificate of purchase shall be null and void; but, if such deed is wrong-fully withheld by the officer whose duty it is to execute the same, * * * the time, during which the deed is so withheld, * * * shall not be taken as any part of the five years within which said holder shall take a deed.” (2 Starr & Curt. Ann. Stat.— 2d ed—p. 2367). Here, the appellant waited more than five years before taking any steps to remove what he claims to have been a fraudulent judgment out of the way of obtaining his master’s deed. Inasmuch as that judgment was properly rendered and was a valid judgment, the master’s deed was not wrongfully withheld from the appellant by the master in chancery. Consequently, no deed can be issued upon the certificate of sale. The money, paid by the appellee, Tuckhorn, to the sheriff, still remains in the sheriff’s hands, as we understand the record, where the appellant may obtain it at any time. By taking the money, appellant will receive the whole amount, to which he is entitled by the terms of the certificate of sale held by him, together with legal interest thereon up to the time when the redemption under the judgment was effected. We cannot see that the effect of the redemption of the property under the judgment has worked, or can work, any serious injury to the appellant, and though he does not get the land, he may, if he chooses, obtain the redemption money to which he is entitled. The decree of the court below is affirmed. Decree affirmed.