Morava v. Bonner

Mr. Chief Justice Hand delivered the opinion of the court: This is a controversy between the parties to this suit, as creditors of the Olivet Baptist Church, over the title to certain real estate which formerly belonged to said church, and a correct determination thereof depends upon the validity of the redemption of the premises in controversy by appellees, through the master, from the sale under the Norton foreclosure decree and the re-sale to them of said premises by the master. If the redemption from said sale by appellees, and the re-sale to them by the master, are valid, the title of appellees must prevail over that of appellants and the decree be affirmed, otherwise it should be reversed. It is first contended that the redemption by appellees is invalid because they did not sue out an execution upon their decree and deliver the same to the sheriff or other proper officer, and have him endorse on the back thereof a levy on the premises desired to be redeemed, in accordance with the terms of section 20 of chapter 77 of our statutes. (2 Starr & Curt. Stat.—2d ed.—p. 2358.) The decree under which the redemption was made did not provide for the issuing of an execution except in case of a deficiency after sale, and under the authority of Whitehead v. Hall, 148 Ill. 253, and Beadle v. Cole, 173 id. 136, no execution or levy was necessary or proper, as the decree was all the process that was required to authorize a redemption. It is next contended that the appellees should be held to have redeemed for the benefit of all the claimants whose claims were decreed to be paid by the decree under which they sought to redeem. The decree was several, and not joint, and the appellees had the right to redeem from the sale under the foreclosure decree of the Norton mortgage as decree creditors, and such redemption inured to their benefit, and not to the benefit of the other creditors of the Olivet Baptist Church, whose claims were covered by said decree. Under the repeated decisions of this court (Davis v. Upham & Stone, 191 Ill. 372; Pugh Co. v. Wallace, 198 id. 422;) each of said decree creditors could have prosecuted a separate appeal from said decree, and we see no reason, if a decree of the character here referred to is severable for the purpose of an appeal, why it is not severable for the purpose of a redemption. It is further contended that the failure of the master to record the certificate of redemption until after the appellants had deposited with the sheriff the amount necessary to redeem from the sale under the decree foreclosing the Norton mortgage defeated the redemption by the appellees from said sale. The section of the statute above referred to made it the duty of the master to make and file in the office of the recorder of the county in which the premises are situated, a certificate of redemption, and his failure to fully comply with the statute did not deprive the appellees, who had complied with the statute by depositing in his hands the amount necessary to redeem from said sale, of the right to redeem therefrom. The appellees did all that the law required of them, and their right of redemption was not defeated by the failure of the master to record the certificate of purchase. Pease v. Fish Furniture Co. 176 Ill. 220. It is, however, said, that although it be conceded that it was the duty of the master to file for record the certificate of redemption and that his failure in that regard would not destroy the redemption of the appellees, he was not bound to file the certificate of redemption until the appellees advanced to him the recording fee, and that the record does not show such fee was advanced by the appellees to the master. The record does not show in express terms that the fee for recording the certificate of redemption was paid to the master. It does show, however, that the master accepted the redemption money and interest, issued a certificate of redemption, proceeded to re-advertise, and re-sold the property, reported the sale, which was approved by the court, and a deed was ordered to issue to the appellees, which was executed by the master. We think, in view of these facts, the presumption obtains that the appellees paid to the master whatever sum was due him from them as costs at the time they sought to redeem, and as the master made no complaint that his fees were not paid, the appellants can not defeat the redemption by appellees by now raising the question of the payment of the master’s fees, especially as that question is raised in this court for the first timé, and was not raised when the master’s report of the redemption and re-sale was presented to the court and approved, although the appellants were present' objecting to its approval on other grounds. The redemption by appellees being valid and antedating that of appellants, as there could be but one valid redemption from the sale under the decree foreclosing the Norton mortgage, it must be held that the only valid redemption from said sale is that of appellees, and that their title to said premises is superior to and must prevail over that-of appellants. The decree of the superior court will therefore be affirmed. Decree affirmed.