DeWitt County National Bank v. Mickelberry

Mr. Justice Dunn delivered the opinion of the court: Section 20 of chapter 77 of the Revised Statutes provides that if redemption, as provided by previous sections of the statute, is not made, “any decree or judgment cred- ■ itor, his executors, administrators or assigns may, after the expiration of twelve months and within fifteen months after the sale, redeem the premises in the following manner: Such creditor, his executors, administrators or assigns, may sue out an execution upon his judgment or decree, and place the same in the hands of the sheriff or other proper officer to execute the same, who shall endorse upon the back thereof a levy of the premises desired to be redeemed; and the person desiring to malee such redemption shall pay to such officer the amount for which the premises to be redeemed were sold, with interest thereon at the rate of six percentum per annum from the date of the sale, for the use of the purchaser of such premises, his executors, administrators or assigns, whereupon such officer shall make and file in the office of the recorder of 'the county in which the premises are situated, a certificate of such redemption, and shall advertise and offer the premises for sale under said execution as in other cases of sale or execution.” (Hurd’s Stat. 1908, p. 1299.) This section refers only to creditors having judgments or decrees capable of enforcement by a sale of the land to be redeemed. Its language requires the issue of an execution, its delivery to the sheriff and levy 011 the premises desired to be redeemed and an advertisement and offer of the premises for sale. It has been held that under a decree directing the sale of the premises sought to be redeemed it is not necessary that an execution should be issued and levied on the premises. Under the chancery practice no execution issues except on personal money decrees, but a decree of sale is itself the authority upon which the officer proceeds. (Whitehead v. Hall, 148 Ill. 253; Morava v. Bonner, 205 id. 321.) A judgment creditor whose judgment has become dormant, so that an execution cannot be sued out, cannot redeem under the provisions of section 20. Neither can a decree creditor whose decree does not, at the time, authorize a sale of the premises sought to be redeemed.) The decree here authorized the sale only of so much of the mortgaged premises as should be necessary to realize the amount found due the complainant and costs. The premises had been sold for that amount and the decree was therefore satisfied. No authority existed for any further sale, and the decree could not, therefore, be made the basis of a redemption under said section 20. If the appellants desired to redeem from the sale made under the decree they should have' done so within twelve months of the sale, under the provisions of section 18. The objection is made that the appellee, being a corporation organized under the national Banking act, had no capacity to purchase the land. This is a matter which does not concern the appellants but can be brought in question only by the Federal government. Fritts v. Palmer, 132 U. S. 282. The order of the circuit court is affirmed. Order affirmed.