Smith v. Wehrheim

Mr. Presiding Justice Smith delivered the opinion of the court. The question presented by the record for decision is whether or not appellant as assignee of the banking company judgment has a right 'of redemption from the foreclosure decree under the statute, the judgment having become dormant some six months after the bill in this case was filed and before the decree was entered. By section 1, chapter 77 E. S., it is provided that a judgment of a court of record “shall be a lien on the real estate of the person against whom it is obtained situated within the county for which the court is held, from the time the same is rendered or revived for the period of seven years and no longer,” provided execution is issued on such judgment within one year after its rendition. Section 20 of said chapter provides for redemption by a creditor, etc., after the year has expired in which the judgment debtor may redeem and within fifteen months after sale, and directs the manner in which the creditor may redeem. The assignee of a judgment creditor by the express provisions of this section may redeem. Sweezy v. Chandler, 11 Ill. 445; Herdman v. Cooper, 138 id. 583. The banking company was a judgment creditor of Otto Meinshausen. Appellant was the owner by assignment of that judgment, on the date of the filing of the bill in the case before us. Neither the banking company nor any owner of the judgment was made a party to the original bill to foreclose. The rights of the banking company and its assigns therefore remained unaffected in any way by the proceedings in the foreclosure case. Boynton v. Pierce, 151 Ill. 203; Richardson v. Hadsall, 106 id. 476; Rodman v. Quick, 211 id. 546; People v. Bowman, 181 id. 422. The position of .appellee is that appellant’s right to redeem is purely statutory; that an execution must issue and be levied under the judgment, and because execution could not issue on the judgment at the time of the decree by reason of the lapse of seven years from its rendition, appellant ceased to be a redemption creditor on November 10j 1904, the' day the judgment became dormant, and hence could not redeem from the foreclosure sale. This position, in our opinion, is untenable. It is not contended that at the date of the filing of the bill in this case appellant was not in a position to redeem under the statute, but it is urged that the filing of the bill herein did not and could not extend the life of the judgment so as to continue its lien. It is unnecessary to hold that the filing of the bill herei n had any such effect. It may be conceded, so far as this case is concerned, that it did not. But the equities of the parties to this proceeding as they existed when the bill was filed, May 4, 1904, should have been determined by the decree. Appellant and appellee’s rights as they existed at that date were before the court, and mere lapse of time in the litigation while appellant was before the court, constantly asserting his right to redeem could not affect his right. Nor was he bound to go outside this case and enter into any other litigation to preserve his right, while he was a defendant in this case in a court of competent jurisdiction to protect his fight as against appellee who had brought him into court directly challenging that same right. When equity once takes jurisdiction, it grants complete relief. Pool v. Docker, 92 Ill. 501; Longshore v. Longshore, 200 id. 470. Had a proper decree been entered promptly under either form, of the relief prayed in the bill, appellant’s right to redeem would have been preserved. Whether entered promptly or not, the decree should speak the rights of the parties as of the date of the filing of the bill, where, as in this case, the parties stood before the court asserting those rights until the decree was entered. It is not necesssary to resort to construction of the statute of redemptions to make it cover and protect the right of"appellant contended for in this case, for the reason that the right of an assignee of a judgment to redeem is there given in precise terms; but it has been repeatedly held that our redemption laws are to be liberally construed to the end that the property of a debtor may paj^ as many of his liabilities as possible. Redemptions therefore are looked upon with favor, and where no injury is to follow, a liberal interpretation of the statute will be given to effectuate that result. Boynton v. Pierce, supra; Schuck v. Gerlack, 101 Ill. 343; Whitehead v. Hall, 148 id. 253. Appellee purchased the premises at the sale under the foreclosure decree. In order to redeem, appellant would have to pay her all her debt, taxes, expenses, etc. How can appellee be injured by the redemption % This was all she took by her purchase at the sale. Strauss v. Tuckhorn, 200 Ill. 75; Karnes v. Lloyd, 52 id. 114; Phillips v. Demoss, 14 id. 409. True, appellee now has a master’s deed, but she chose to take it in a proceeding where she failed to do a plain duty and make the banking company a party. If she had brought in the banking company, the right to redeem now held by appellant would have been foreclosed. She cannot now come into equity and ask relief without conforming to equitable principles, particularly where she will suffer no injury in so doing. Inasmuch as the decree denies appellant’s right to redeem, it is erroneous. The decree is, therefore, reversed and the cause is remanded with directions to enter a decree in accordance with the views here expressed. Reversed and remanded with directions.