{ "id": 4775116, "name": "David L. McCullough v. Charles Rose", "name_abbreviation": "McCullough v. Rose", "decision_date": "1879-08-01", "docket_number": "", "first_page": "149", "last_page": "153", "citations": [ { "type": "official", "cite": "4 Ill. App. 149" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "52 Ill. 113", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5299934 ], "opinion_index": -1, "case_paths": [ "/ill/52/0113-01" ] }, { "cite": "69 Ill. 133", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2633396 ], "opinion_index": -1, "case_paths": [ "/ill/69/0133-01" ] }, { "cite": "68 Ill. 160", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2630239 ], "opinion_index": -1, "case_paths": [ "/ill/68/0160-01" ] }, { "cite": "58 Ill. 85", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5235976 ], "opinion_index": -1, "case_paths": [ "/ill/58/0085-01" ] }, { "cite": "19 Ill. 320", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 441617 ], "opinion_index": -1, "case_paths": [ "/ill/19/0320-01" ] }, { "cite": "44 Ill. 428", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5224005 ], "opinion_index": -1, "case_paths": [ "/ill/44/0428-01" ] }, { "cite": "53 Ill. 61", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5277450 ], "opinion_index": -1, "case_paths": [ "/ill/53/0061-01" ] } ], "analysis": { "cardinality": 471, "char_count": 9713, "ocr_confidence": 0.544, "pagerank": { "raw": 1.5900659886329824e-07, "percentile": 0.681934931341557 }, "sha256": "5cfe178b4129b285307c9c7bc37743ddde5a55d95408867c7545c9d447a92b5a", "simhash": "1:0e1e1307c2c72912", "word_count": 1754 }, "last_updated": "2023-07-14T20:50:02.060400+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "David L. McCullough v. Charles Rose." ], "opinions": [ { "text": "Casey, J.\nThis was a proceeding in the Circuit Court of Washington county, to compel the Master in Chancery of said county to execute and deliver a deed. The record shows that James Bell filed a petition for a mechanic\u2019s lien against W. S. Post and James A. Baldridge, averring that he had furnished lumber, materials, etc., and praying for a decree for the sale nf lot four, in block two, in the town of Irvington, in said county.\nThe appellant interpleaded, alleging that there-was due to him the sum of seven hundred and eighteen dollars purchase money on said premises.\nLemon .Fonts also interpleaded, alleging that he held a mortgage on said premises for the sum of five hundred and twenty-one dollars and seventy-five cents; and Alexander Brown inter-pleaded, alleging a claim due him as a mechanic for work in constructing improvements on said premises, amounting to the sum of one hundred and twenty dollars. There was service upon the defendants. The court heard the cause upon the petition, interpleaders, answers and proofs, and at the April term of said court, A. D. 1877, entered a decree directing the Master in Chancery of said county to sell said premises, and out of the proceeds to pay, first: the claim of appellant in full; second: the claim of Lemon Fonts in full; and third: the claims of Jas. Bell and Alexander Brown. The Master, in pursuance of said decree, sold the premises at public vendue on the first day of September, A. D. 1877. And at said sale appellant became the purchaser of said premises for the sum of fifty dollars, and received from the Master a certificate of the purchase thereof. And the record shows that after the expiration of fifteen months from the day of sale, and before this proceeding was begun, appellant presented his certificate to the Master, tendered the fee, and demanded a deed of said premises. The record also shows that on the 20th day of August, A. D. 1878, an execution was issued because of the findings in said decree for the said sum of five hundred and twenty-one dollars and seventy-five cents, in favor of Lemon Fonts. The execution bears the following indorsement: \u201c Received this day the sum of fifty-five dollars of Lemon Fouts, for redemption of lot 4, bl. 2, in S. Y. Henry\u2019s Add. to Irvington, from sale thereof made September 1st, 1877, on decree in case of Bell et al. v. Baldridge et al. in said Circuit Court, date Aug. 20, 1878. I have levied on the following real estate, to wit: Lot 4, block 2, in Samuel Y. Henry\u2019s addition to the town of Irvington, Ills, (the same being redeemed as above.)\n\u201c Sept. 2nd, 1875.\n\u201c(Signed) J. May, Sheriff.\u201d\nIt is difficult to tell what is meant by the sheriff in his endorsement referring to the date of Aug. 20, 1878, unless he refers to the date when the execution came into his hands.\nThe record further shows a certificate of redemption issued by the Master in Chancery to Lemon Fouts, for the sum of fifty-five dollars, bearing date September 2nd, 1878, redeeming lot four (4), in block two (2), in S. Y. Henry\u2019s addition to the town of Irvington, sold by virtue of a decree of the Circuit Court, in a cause wherein James Bell was plaintiff, and W. S. Post et al. were defendants, rendered at the October term, A. D. 1877.\nThat the sheriff by virtue of his levy aforesaid, on the 4th day of January, A. D. 1879, sold the said property at public sale and the said Lemon Fouts became the purchaser thereof, for the amount of the redemption money and costs, and the sheriff thereupon made and delivered to him, the said Font\u2019, a deed of said premises. The record also shows that on the 2nd day of September, A. D. 1878, an execution was issued by the clerk of the Circuit Court, because of the decree in favor of Jas. Bell, for the sum of two hundred and twelve dollars, and the endorsement on said execution, shows that the sheriff received $55.00 for redemption of said premises from sale of Master in Chancery, on decree in favor of D. L. McCullough, made Sept. 1st, 1877.\nThe record further shows a certificate of redemption, dated September 2nd, 1878, issued by the sheriff to James Bell, of lot four in block two, in S. Y. Henry\u2019s addition to the town of Irving, in Illinois, sold by virtue of a decree rendered in the cause of James Bell et al. v. W. S. Post and James A. Baldridge, rendered at the April term of said court, A. D. 1877.\nThe record also shows a demand in writing, as aforesaid, for a deed, and notice to appellee that the appellant would, in open court, enter a motion for a rule upon appellee to compel him to make a deed, etc.\nThe notice was duly served; both parties appeared, and on this state of facts the court below overruled the motion, and dismissed the proceedings.\nAppellant excepted to the ruling of the court, brings the case to this court by appeal, and assigned for error, in substance, as follows:\nFirst\u2014The court erred in overruling the motion.\nSecond\u2014The court erred in deciding that a redemption on S. T. Henry\u2019s addition was a redemption of the property sold in Irvington.\nTki/rd\u2014The court erred in holding that Lemon Pouts could redeem from the said, sale after the expiration of - twelve months.\nThe first error assigned includes the third. The statute provides in cases of this character that the \u201clight of redemption shall exist in favor of the same persons, and may be made in the same manner as is or may be provided for redemption of real estate from sales under j udgments and executions at common law.\u201d\nPrior to the act of 1869, there was no redemption from sales made on decrees to enforce mechanics\u2019 liens. The intention of the legislature was to allow redemption in such a case as in sales on \u201cjudgments and executions at common law.\u201d\nThe property was sold by virtue of a decree rendered in favor of appellants, Lemon Pouts, James Bell and Alexander Brown. It is as much the decree of one as the other. The moieties of the different creditors, were declared by the court, and the master was directed as to which claims he was to pay first. This did not in any respect change the character of the decree. It was as much the sale of one as the other. A party cannot redeem from his own sale. Redemption is a statutory right, favored, it is true, by the courts, because it is desirable that the debtor\u2019s land should pay as many of his debts as possible, but there is no authority anywhere for a party to redeem from his own sale. The sale already made is for his benefit. The decree is specifically against that property, to that extent a proceeding in rem. In case the specified property is sold and the proceeds do not pay the various claims, in that event the plaintiffs would be entitled to executions on their judgments against the property of the defendants. The parties may and ought to protect themselves by being present at the sale. The record in this case shows the property to have been valued at more than twelve hundred dollars, yet there is no pretense but what the sale to appellant was fair and honest. However that question is not before us now.\nThe decree shows that the Master in Chancery was ordered to sell and did sell lot four, in block two, in the town of Irvington, Washington County, Illinois. The decree was rendered at the April term of the Circuit Court, A. D. 1877. Each of the certificates of redemption contained in the record, shows that \u201c lot four (4), in block two (2) in S. T. Henry\u2019s addition to the town of Irvington,\u201d sold by virtue of an \u201c order and decree,\u201d made at the October term of said court, A. D. 1877, was redeemed.\nIt is possible that the property is the same, but there is no proof of that fact. There may be a lot four, block two, in the town of Irvington, and there may be just such property in.S. T. Henry\u2019s addition to said town.\nIf it is the same property, that fact should have been made to appear. The decree was made at the April term, -1877. The certificate issued to Lemon Fonts, is from a sale made by virtue of a decree rendered at the October term, A. D. 1879. This may be a clerical error; certainly it does not tend to identify the property.\nFor these reasons the judgment of the court below must be reversed and the cause remanded.\nReversed and remanded.", "type": "majority", "author": "Casey, J." } ], "attorneys": [ "Messrs. W. & E. L. Stoker & Hosmer, for appellant;", "Mr. Jour M. Breeze and Mr. L. M. Phillips, for appellee;" ], "corrections": "", "head_matter": "David L. McCullough v. Charles Rose.\nMaster\u2019s sale\u2014Redemption.\u2014In a proceeding for mechanic\u2019s lien, the vendor of the premises interpleaded, claiming purchase-money still due, and there was an interpleader by a mortgagee of the premises and by parties who had furnished materials. The court found the equities of the several parties, and ordered a sale of the premises, directing the order of payment of the proceeds. The premises were sold and purchased for a nominal sum by the original vendor. Subsequently there were attempted redemptions from such sale by the mortgagee and other interpleaders. Held, that the decree finding the equities of the parties, was the decree of all, and the sale thereunder was as much the sale of one as of another, and that a party cannot redeem from his own sale; the sale already made is for his benefit and it is his duty to be present and protect himself.\nAppeal from the Circuit Court of Washington comity; the Hon. Amos Watts, Judge, presiding.\nOpinion filed August 1, 1879.\nMessrs. W. & E. L. Stoker & Hosmer, for appellant;\ncited Rev. Stat. 1874, 623; 1 Story\u2019s Eq. Jur. 437; Mixer v. Sibley, 53 Ill. 61; Strang v. Allen, 44 Ill. 428.\nMr. Jour M. Breeze and Mr. L. M. Phillips, for appellee;\nthat the court cannot decide upon the right of a creditor who is not before the court, to redeem, cited Prentice v. Kimball, 19 Ill. 320; Page v. DeLeuw, 58 Ill. 85; Ryan v. Lynch, 68 Ill. 160.\nAs to the right of redemption: Durley v. Davis, 69 Ill. 133; Karnes v. Lloyd, 52 Ill. 113." }, "file_name": "0149-01", "first_page_order": 145, "last_page_order": 149 }