Wyman v. Friedman

Mr. Justice Smith delivered the opinion of the court. Appellant contends (1) that the bill was not verified and that no evidence of any kind was offered in its support; (2) that he had a clear legal right to redeem, although his judgment was not a lien upon the premises; (3) the court, upon appellant’s sworn answer to the bill denying the equities of the bill, should have denied the injunction; and (4) the bill does not establish against appellant an estoppel to redeem, the material allegations of the bill with respect thereto being met by appellant’s sworn answer. Without stopping to discuss the first point made by appellant as to whether the bill is properly verified by an affidavit filed subsequently to the bill, we pass to the fundamental question involved in this appeal as to whether or not, under our statute, appellant had a legal right to redeem from the foreclosure sale. If he had not a legal right to make redemption, the question of practice as to the verification of the bill might be important and decisive of this appeal. If, on the other hand, appellant had the right to redeem under the uncontroverted facts presented by the pleadings, then, without reference to the question of estoppel, which we will consider later,' the order must be reversed, whether the bill was verified or not. Treating the bill, then, as duly verified for all the purposes of this appeal, had appellant the legal right to redeem % It is admitted by the pleadings that long prior to the entry of appellant’s judgment against Harris, and prior to the institution of the foreclosure proceedings under which the sale was made, Harris, the judgment debtor, had conveyed all his interest in the property in question, and that the judgment of appellant was never a lien thereon. Appellee bases his contention against the right of appellant to redeem, not upon the fact that appellant’s judgment was never a lien upon the premises, but upon the fact that prior to the commencement of the Schilling foreclosure proceedings, Harris had, by a voluntary conveyance, parted with his title to the property. It is also contended by appellant and conceded by appellee that the Supreme Court has been liberal in construing the statute so as to extend the right to redeem to ail grantees and judgment creditors of the person then owning the equity in the property, and to judgment creditors of the grantees of the equity. Appellee, however, maintains that the statute does not go so far, nor have any of the decisions gone so far as to permit a creditor of one who had voluntarily conveyed all his interest in the property, before foreclosure proceedings or before the levy of an execution against the property, to redeem, and therefore appellant cannot redeem as he has attempted to do. It was held in Sweezy v. Chandler, 11 Ill. (page 451): “It was satisfactorily answered that the judgment creditor can never redeem until the judgment debtor’s rights are entirely gone, by the expiration of the twelve months within which he might have redeemed. The redemption, therefore, is never of the defendant’s present estate, nor is the sale, under the junior judgment, of the defendant’s interest.” A similar question to the one now before us was involved in McRoberts v. Conover, 71 Ill. 524. In that case John Mullaney’s title and interest in the property had, by sheriff’s deed, passed to Donlan & Chandler long prior to the entry of the McRoberts judgment, under which it was sought to redeem from a prior foreclosure sale. It was held that McRoberts was entitled to redeem. It is true that Mullaney, in the above case, did not part with his title and interest in the property by voluntary conveyance as Harris did, but we cannot perceive that the mere fact that title passed from the judgment debtor, by a voluntary conveyance instead of by operation of law, under a sale by a sheriff or master in chancery, can affect, the question of the right to redeem. The opinion of the court in Fitch v. Wetherbee, 110 Ill. 475, seems to be the most exhaustive expression of the law of this State on the question now before us to which our attention has been directed, and we find there among other expressions applicable to this case the following on page 489 : “ Whoever else may redeem in such cases, it hardly admits of a doubt the judgment creditor of the mortgagor is one of the persons that may redeem under the provision of the statute. “ Plainly, then, any decree or judgment creditor of the mortgagor may redeem from the mortgage sale, where no one having a right to redeem the property within twelve months from the date of the sale elects to exercise that privilege. And it makes no difference whether the mortgagor had conveyed his equity of redemption, or whether it had been sold on execution before the foreclosure sale. The previous decisions of this court accord with this construction of the statute.” Appellant was a judgment creditor of the mortgagor Harris and as such falls within the meaning and intent of the statute, as construed by the Supreme Court, and was, in our opinion', entitled to redeem. It remains for us to consider whether appellant is es-topped from exercising his right to redeem by anything which is alleged in the bill of complaint. In considering this branch of the case we are disposed to treat the bill as duly verified for the purposes of the motion for the injunction now before us, whether it be so or not. With respect to the allegations regarding appellant’s conduct it must be observed that appellant was not appellee’s attorney, nor did he stand in any relation to appellee which made it his duty to advise him as to the law or the facts regarding the financial status of Harris, or his outstanding obligations. Harris had assumed to give appellee information and advice regarding these matters upon which he was acting. The bill does not allege that at the time the negotiations for the purchase of the certificate of sale were progressing, appellant either held the note in question or knew of its existence. The averments of the bill are in the alternative, and neither alternative is positively stated. And further, from the facts of the case as stated in the bill, it appears that the allegation is not based on the personal knowledge of appellee in that regard; nor are any facts stated from which.the court can infer such personal knowledge. As against this are the positive denials and averments of the-answer. These are sworn to and on a motion for a preliminary injunction a sworn answer may be used and treated as an affidavit. The answer shows that appellant did not own the note or know of its existence until after appellee’s time of redemption had expired. It is not shown by the bill that appellee relied on anything that appellant said or did. The substance of the alleged estoppel, as we read the averments of the bill, consists in the failure to inform appellee in regard to the note on which appellant entered judgment, and its ownership at the time of the negotiations for the purchase of the certificate. These averments are fully met by the answer. Both parties appear to have known nothing about these facts at the time, and from all that the record shows their means of knowledge and information were equal. In such a situation no estoppel can be predicated upon concealment or silence. Knapp v. Jones, 143 Ill. 375; Davidson v. Young, 38 Ill. 145. In Riss v. Hanchett, 141 Ill. 419, it is said on page 424: “An essential of estoppel by conduct is that the misrepresentation or concealment of material facts must have been with knowledge of such facts.” Pease v. Trench, 98 Ill. App. 24; Bradley v. Lightcap, 202 Ill. 168. We d"o not think appellant was estopped by any facts properly averred in the bill, and the order in question cannot be sustained on that ground. It is contended by appellee that the decree in Mair v. Harris et ah, set up in the bill, was a final decree, and that the Harris note upon which appellant caused judgment to be entered was merged into the decree; and if it was so merged, a mere assignment of the note, without an assignment of the decree, does not make appellant a creditor of Harris. The bill shows that on May 26, 1900, a decree was entered by the Circuit Court of Cook County in the case of Mair v. Harris et al., then pending in said court, declaring that Hair’s trust deed was a first lien upon the premises therein described, and that appellant’s note then owned by Adeline Lobstein, executrix, was a second lien, under the trust deed securing it, subject to the Mair trust deed, and that there was then due from Harris to the owner of the note the sum of $3,208. Nothing is averred in the bill as to service upon Adeline Lobstein, or whether she appeared or answered, or whether any relief was prayed by her in any pleading. From what appears in the bill, Lobstein could not have obtained an execution against Harris on the decree. It was a mere finding which would have enabled Lobstein as second mortgagee to have participated in any surplus proceeds of the sale, if any, after the payment of the first mortgage. Neither a sale of the premises nor possession thereof could be obtained under the decree. The decree gave the holder of the note no means to enforce the satisfaction of his debt, and it was in no legal sense a foreclosure of the mortgage securing the note, or a judgment thereon. “ Merger, in the law of contracts, is the absorption or extinguishment of a security of a lower legal degree in another of a higher legal degree.” 20 Am. & Eng. Encyc. (2nd ed.), 596. The holder of a note secured by a mortgage has several legal remedies, any one or all of which he may pursue, concurrently with the others or successively, until he obtains satisfaction. Fish v. Glover, 154 Ill. 86, and cases cited. To hold, therefore, that the mere finding in the decree of the amount due on the note, merged the note in the decree, would be to say that the greater security was merged into a less security. This we are not prepared to hold. In the case of Brown v. Schintz, 203 Ill. 136, plaintiff was permitted to maintain ejectment on a trust deed upon which, and the note secured thereby, it had been adjudged and decreed in the case of Wheatman v. Brown, a chancery proceeding in the Circuit Court of Cook County, wherein Brown and wife, Schintz, trustee, and Huber, were parties, that there was due Huber, secured by this trust deed, $1,069.73. It is obvious that if the note was merged in' that decree, so, also, was the trust deed, and no action could have been founded upon it. If there was a merger in that case, there was an entire extinguishment of all remedies upon the note and trust deed. The Supreme Court affirmed the judgment of the Circuit Court, thus in effect holding there had been no merger. In our opinion the note in question here was not merged in the decree. This disposes of the material questions involved in this appeal. The order of injunction is reversed. Reversed.