Compton v. Comer

Stockton, J„. The complainant seeks relief in equity-, against certain proceedings had in the District Conrt of Muscatine county, to foreclose a mortgage given by him on certain lands in said county, and for a decree that shall ■allow him to come in and pay off and discharge the mortgage. He also seeks such a discovery from the respondents, as shall inform him of the true state of facts, in respect to the sale of said lands, made by the sheriff under the decree rendered in said suit. The reasons alleged by the complainant, why the proceedings in said foreclosure suit should be set aside, and the sheriff’s sale held -for naught, are, that at the time of the commencement of the snit, he was a resident of the state of Illinois; that there was no such notice given of the pendency of the suit, as is required by law; that the suit was commenced on the 18th of May, by delivering the original notice to the sheriff; that the same was by him on the next day, “returned not found;” that the term of the District Court, at which the decree of foreclosure was rendered, commenced on the .7th of June thereafter; and that the four weeks’ notice by publication, required by law, could not have been given between the ¡said 14th of May, and 7th of June succeeding; that no return has been made by the sheriff of the -execution, on which the lands were sold, and no deed for the same from the sheriff to the purchaser is on record; that the complainant Only knows from rumor, that such sale has ever been made, and is informed and believes that one of the piece s of land, the same having been sold in parcels, brought, at the sheriff’s [581] sale, a greater amount than was necessary to pay the judgment and costs, notwithstanding which fact, all the land was sold, and no part of the purchase money has been paid, nor any surplus accounted for to complainant. These things, he alleges, were all done with the knowledge of respondent Comer, who is in possession of the land, and claims to own the same by virtue of the proceedings aforesaid, and who is alleged to have been the contriver of all the unfair practices charged, and who, though required, refuses to give to complainant any information or satisfaction in the premises. The respondent Comer, while he, by his answer, claims the legal and equitable title in the land, makes no answer to the material allegations of the complainant’s bill. The facts as to the means by whieh the decree was procured, and land sold, being charged to have been within the knowledge of Comer, and to have been done at his instigation, not being replied to by him, are to be taken as true; and we have only to inquire, whether the new matters set up by Comer, in his answer, by way of defence, are sufficient to defeat complainant’s right to the relief prayed for. In this answer, without making it a cross bill, or seeking any discovery from complainant, in reply to its averments, Comer prays that the court, on final hearing, will decree the lands to him. And that complainant be required to convey the lands to him by good and sufficient deed. The respondent cannot pray anything in his answer, except to be dismissed the court. If he has any relief to pray, or discovery to seek, he. must do so by a bill of his own, or he may make his answer a cross bill. Morgan v. Tipton, 8 McLean, 389 ; McConnell v. Hodson, 2 Gilman, 640; Daniell’s Chancery Practice, chapter 31. The matters set up by the answer, are not presented in such shape as to be available to respondent, either as a bar to the relief sought by complainant, or as ground on which the court can base any decree in favor of respondent. "Waiving, however, for the present, all questions as to the form in which the matter of the answer is presented, we in [582] quire as to its sufficiency, in point of substance, to defeat complainant’s claim to relief. It is evident that Comer cannot claim tbe land by virtue of the parol agreement with Compton, and by virtue of the purchase at sheriff’s sale,, at the same time. They cannot both stand, and one or the other he is compelled to abandon. He has chosen to abandon his claim of title under the purchase at sheriff’s sale, and to rely on the alleged parol agreement with Compton. How, then, does the case stand, viewing it in the light in which it is sought to be placed by respondent, as a purchase of the land by him from complainant ? We are of opinion, that the evidence is not sufficient to show a proposition on the part of complainant to sell the land, accepted by Comer, and notice of such acceptance given to complainant. It was not sufficient to show that respondent addressed a letter to complainant, through the post office at Middleton, Illinois, accepting the proposition, without evidence that complainant received the letter. Nor can the purchase of the mortgage by respondent, be regarded in the light of a payment by him to- Compton, upon the land. The respondent did not so regard it himself. He prosecuted the suit on the mortgage, commenced by Fletcher, to judgment against Compton, issued execution on the judgment, and bought in the land at the sheriff’s sale. There is a wide difference between payment, which would have satisfied and extinguished the mortgage, and the purchase of it by respondent, and his attempt to enforce it as a valid and subsisting demand against complainant, by prosecuting the suit to judgment, and selling the land to satisfy it. As respondent abandons all claim to the land under the sheriff’s sale, it is no answer to the objection, to aver that he sold the land under the judgment of foreclosure, in order that he might keep it in such a position as. to compel Compton to fulfill his verbal contract with him. Nor can respondent’s possession, of the land in any respect strengthen his claim. Such possession, to be of any avail, must have been with the. actual or implied consent of Compton, and under and by [583] ■virtue of tbe contract of sale. But if no contract or agreement is shown, neither payment by respondent, nor possession of the land, is of any avail. Decree affirmed.