Innes v. Linscheid

Mr. Justice Ball delivered the opinion of the court. From a careful examination of the record we fully agree with the chancellor that the allegations in the bill as finally amended are true. The receiver, before he entered upon his duties, gave a bond satisfactory to the court, conditioned that he would faithfully and truly perform the duties of his office. If he failed so to do, the remedy at law was ample and complete. The bid at the sale in the foreclosure proceedings paid the entire sum found to be due, with interest and costs. Upon the approval of the report of sale, the property had responded to all that it was pledged to perform, and the court with the close of the term in which such decretal order of approval was entered, so far as the property is concerned, had exhausted its power and jurisdiction. And yet it is here asserted that more than three years after the approval of a sale which paid the debt for which the property was pledged, while that sale stood complete in all its parts and unchallenged, the court, upon a petition filed in the foreclosure suit, could subject the property to a second sale in order that certain defaults of the receiver might be cured. Such a contention finds no support in the books. It is a legal absurdity. As we said in Dale v. Davis, 51 Ill. App. 332, “The debt and decree were fully satisfied when the premises were sold for the full amount of the debt, with interest and costs. After that, and as between the purchaser and the owner of the equity of redemption, the jurisdiction of the court ceased when the title to and the possession of the property he purchased had been completely perfected in the purchaser.” To the same effect are McDonald v. Miller, 54 Ill. App. 330; Stoddard v. Walker, 90 Ill. 422; Koehler v. Brewing Co., 101 Ill. App. 340; Lightcap v. Bradley, 186 Ill. 525. The cases of Knickerbocker v. McKindley Coal Co., 172 Ill. 535, and Knickerbocker v. Benes, 195 Ill. 434, are not in point. In each of those cases the claim made against the receiver was classed as a liability incurred in operating the property, a going concern. Here the claim arises solely from the receipt of rents. The fact that Solberg, the complainant in the foreclosure proceeding, became the purchaser at the sale, is immaterial. He had the same right to bid at the sale as had any third person. He stood as would any other purchaser. That he was complainant neither gave him any rights, nor did it take from him any rights he otherwise would have had. Carroll v. Haigh, 97 Ill. App. 576. It is true that when the bill of foreclosure was filed the property was taken possession of by the court through its receiver. But when at the sale the property brought enough to pay the entire debt, interest and costs, the right of the receiver to keep possession of the property ceased. The rents, from the date of that sale to the end of the equity of redemption, belonged to Thorell, the mortgagor. He should then have asserted such right. That he did not do so, and thus enabled the receiver to expend such rents upon the property, does not give him the right to subject such property to a second sale, thereby taking it from the subsequent purchasers. Undoubtedly the trial court, after the sale and its approval, retained jurisdiction over the receiver to compel him to make a fair account of his acts and doings, and if Solberg colluded with the receiver to exhaust the funds in the hands of that officer, we think he might be included as a proper party to respond in that accounting. But the bill in this case was filed to remove the sale and the certificate as a cloud upon the title to the property. The relief given, so'far as appellees are concerned, was equitable and just. That the chancellor, in the absence of a request so to do, did not include in his decree a saving clause as to Giroux and Solberg for the benefit of Thorell, is not ground for reversal. The decree of the Circuit Court is affirmed. Affirmed.