Livingston v. Moore

Mr. Justice Hand delivered the opinion of the court: The defendant prayed an appeal from the order of the court overruling her motion to set aside the judgment and grant a new trial, which prayer for an appeal was denied, and the action of the court in that regard has been assigned as error. The defendant had made a motion to set aside the judgment and grant a new trial at an earlier day of the term, based on different gfounds from the motion the overruling of which was sought to be reviewed by appeal, and it seems to have been the view of the trial court that if the defendant desired to review its action in refusing to set aside the judgment and grant a new trial an appeal should have been prosecuted from the order of the court in overruling the first motion, and for that reason declined to grant an appeal from the order overruling the second motion. Whether the court erred in declining to grant the defendant an appeal from its second order overruling the motion to set aside the judgment and grant a new trial need not be now determined, as the entire record is now before us for review upon this writ of error, and every question has been raised upon this record which could have been raised by the defendant had an appeal from said order been granted. It is next contended that the court erred in rendering judgment against the defendant, as it is said the plaintiff did not show a connected chain of title in himself from the general government or from a common source of title with the defendant. It was not necessary that the plaintiff show a connected chain of title in himself from the general government or from a common source of title with the defendant, as the rule is well settled in this State that where the purchaser at an execution sale in an action of ejectment against the defendant in execution shows a valid judgment and execution and a sheriff’s deed to himself, he has established title in himself to whatever title the defendant had in the premises. (Ferguson v. Miles, 3 Gilm. 358; Hayes v. Bernard, 38 Ill. 297; Osgood v. Blackmore, 59 id. 261.) In the Ferguson case, on page 365, it was said: “The law is, that in an action of ejectment instituted by the purchaser at a sheriff’s sale against the defendant in the execution the defendant cannot controvert the title. The plaintiff is only required to produce the judgment, execution and sheriff’s deed.” In Hayes v. Bernard, supra, on page 301: “It is the general rule, when a defendant in execution, when land has been sold thereunder, is sued in ejectment by the purchaser under the execution to recover the possession, he cannot dispute the plaintiff’s title. The books are full of cases conceding this proposition. (Ferguson v. Miles, 3 Gilm. 358; Jackson ex dem. v. Graham, 3 Caines, 188; Cheny v. Denn, 8 Blackford, 552.) The doctrine of all the cases on this point is, that the purchaser comes into exactly such estate as the debtor had, and if it was a tenancy the plaintiff will be tenant also, and estopped in a suit by the landlord from disputing his right, in the same manner as the original tenant, who becomes quasi tenant at will to the purchaser.” In Osgood v. Blackmore, supra, on page 264: “It is believed to be a rule, without exception, that when a plaintiff in ejectment seeks to recover land against the defendant in execution, or when it becomes necessary to rely on a sheriff’s deed as a link in his chain of title, he is only required to produce a judgment, an execution thereon and the sheriff’s deed for the premises. This rule is so familiar that it requires no citation of authorities in its support.” See, also, Gould v. Hendrickson, 96 Ill. 599; Anderson v. Gray, 134 id. 550; Keith v. Keith, 104 id. 397; Woods v. Soucy, 184 id. 568. It is finally contended that the sheriff’s sale was invalid because the sheriff did not pay to the defendant $1000 as and for her homestead in said premises out of the proceeds of said sale. The statute is as follows: “In case tjie value of the premises shall, in the opinion of said commissioners, be more than $1000, and cannot be divided as is provided for in this act, they shall make and sign an appraisal of the value thereof, and deliver the same to the officer, who shall deliver a copy thereof to the execution debtor, or to someone of the family of suitable age to understand the nature thereof, with a notice thereto attached that unless the execution debtor shall pay to said officer the surplus over and above $1000 on the amount due on said execution, within sixty days thereafter, that such premises will be sold.” (Hurd’s Stat. 1909, chap. 52, sec. 11.) “In case such surplus, or the amount due on said execution, shall not be paid within the sixty days, the officer may advertise and sell the said premises, and out of the proceeds of such sale pay to such execution debtor the said sum of $1000, and apply the balance on said execution.” (Ibid. sec. 12.) The amount was paid to the sheriff by the plaintiff with which to pay the defendant for her homestead right in the premises, and the fact that the defendant, at the time the ejectment suit was commenced, had not received the money would not defeat the sale under the execution. It is manifest from the terms of the statute the duty devolved upon the sheriff, and not upon the plaintiff in execution, to pay to the execution debtor the $1000 for her homestead, and the neglect of duty by the sheriff or the obstinacy of the defendant in refusing to accept the money could not defeat the sale and deprive the plaintiff of the right to a deed to the premises which would entitle him to possession. Finding no reversible error in this record the judgment of the circuit court will be affirmed. Judgment affirmed.