Connecticut Mutual Life Insurance Company v. Cushman

The property involved in this suit is certain real estate in the city of Chicago, covered by a mortgage, executed January 29, 1870, by W. H. W. Cushman and wife to secure the Connecticut Mutual Life Insurance Company in the payment of $75,000 five years thereafter, with interest, payable semi-annually, at the rate of 9 per cent. per annum. The property was thereafter conveyed to W. H. Cushman, subject, however, to that mortgage.

The local law, in force when the mortgage was given, provided that upon a sale of lands or tenements, under execution, the officer should give to the purchaser a certificate showing the property purchased, the sum paid therefor, or, if the plaintiff is the purchaser, the amount of his bid and the time when the purchaser (unless the property be redeemed as provided in the statute) will be entitled to a deed. A duplicate of such certificate, signed by the officer, is required to be filed by him in the office of the county recorder within 10 days from the sale. Within 12 months from the sale, the defendant, his heirs, executors, administrators, or grantees may redeem by paying the purchaser, or the officer for his benefit, the sum bid by the former, with interest thereon at the rate of ten per cent. per annum from date of sale. Whereupon the sale and certificate becomes null and void. After the expiration of 12, and at any time before the expiration of 15, months from the sale, a judgment creditor (even one who became such after the expiration of 12 months from the sale, Phillips v. Demoss, 14 Ill. 413) may redeem by suing out execution, placing the same in the hands of the proper officer, (whose duty is to indorse thereon a levy upon the property to be redeemed,) and by paying to such officer, for the use of the purchaser, his executors, administrators, or assigns, the amount for which the premises were sold, with interest at the rate of ten per cent. per annum from the date of sale. The officer, having filed in the county recorder's office a certificate of the redemption by such judgment creditor, is required to advertise and offer the property for sale under the execution. The judgment creditor, thus redeeming the property, is considered as having bid at the execution sale the amount of the redemption money paid by him, with interest from the date of redemption to the day of sale. If no larger bid is offered, the property is struck off and sold to such judgment creditor, who becomes entitled to a deed.

The statute provides that the whole or part of any lands sold under execution may be redeemed by a judgment creditor in the like distinct quantities or parcels in which the same are sold; also, if there be no redemption within the time prescribed, that the purchaser is entitled to a deed, further, that 'lands sold under and by virtue of any decree of a court of equity for the sale of mortgaged lands' may be redeemed by the mortgagor, his heirs, executors, administrators, or grantees, and by judgment creditors, in the same manner as is prescribed for the redemption by such parties, respectively, of lands sold under executions at law. By a subsequent act, in force July 1, 1879, the foregoing statutes were amended so as to require the party redeeming to pay the amount going to the purchaser, with interest at the rate of only eight per cent. per annum.

This act continued in force till after July 1st, 1879.

[Statement of Case from pages 54-56 intentionally omitted]

On the twelfth day of December, 1877, the insurance company instituted a suit for foreclosure, in which a final decree of sale was passed on the fourteenth day of July, 1879. The sale occurred on the fifteenth day of August, 1879, when the insurance company became the purchaser of various lots, into which the mortgaged premises had been subdivided, at prices aggregating in amount the principal and interest of its debt-the latter being computed up to the decree at the rate stipulated in the mortgage, and thereafter at the statutory rate of 6 per cent. per annum. The sale was duly confirmed by an order entered October 10, 1879.

On the third day of November, 1880,-these rules being in force and no redemption having been made by the mortgagor or by any one claiming under him,-a judgment by confession on a warrant of attorney was entered in the court below for $10,150, in favor of Henry S. Monroe against W. H. Cushman, grantee of the mortgagor. An execution on that judgment, sued out November 9, 1880, was placed in the hands of the marshal of the United States for the northern district of Illinois, who indorsed thereon a levy, as of that date, on a portion of the lots purchased by the insurance company. Monroe, on the succeeding day, deposited with the clerk of the federal court the sum of $12,741.95, which covered as well the aggregate amount of principal and interest, as the commissions and fees allowed to the clerk. Rev. St. § 828. Thereupon, on the next day, the clerk, under his hand and seal of office, issued a certificate of redemption for the lots so levied on.

On November 15, 1880,-on which day, according to the rule established by the supreme court of Illinois, the additional three months given to judgment creditors expired: Roan v. Rohrer, 72 Ill. 583; ''Protection Life Ins. Co.'' 81 Ill. 89,-Robert D. Fowler, assignee of Monroe's judgment, and of his interest in the levy and redemption that has been made, deposited with the clerk of the federal court the further sum of $62,047.01 for the redemption of certain others of the lots purchased by the company. That sum covered the latter's bid for those lots, with interest at 8 per cent. A certificate of redemption covering such lots was issued on the day of Fowler's deposit. The marshal, on November 16, 1880, advertised for the sale on the eighth day of December, 1880, of all the lots sought to be redeemed under the Monroe judgment and execution. The record does not show the indorsement of any additional levy beyond that made November 9, 1880. The sale occurred as advertised, Fowler becoming the purchaser of all the lots embraced in the two certificates of November 10th and November 15th, at a sum equal to the amount of the sums deposited, with interest at the rate of 8 per cent. per annum from the date of such deposits. No money was paid to the marshal, and none to any other officer, except that deposited with the clerk, who, as required by the act of congress and the rules in question, placed it in the registry of the court.

It will have been observed that the rules established by the federal court differ from the provisions of the local statutes in this: that by the former the redemption money in all cases is require to be paid to the holder of the certificate or to the clerk of the court, whereas by the latter, in the case of redemption by a judgment creditor, the money must be paid to the officer having the execution. In no case do the rules of the federal court provide for payment either to the master or other officer who conducted the decretal sale, or to the officer holding the execution of the judgment creditor.

The property so sold was, as is claimed by appellee, subsequently redeemed within the time and in the mode prescribed in the rules established by the court below for the redemption of real estate from sales under decrees. But the contention of the insurance company is that those rules do not conform to the statutes of Illinois; that the latter, equally, as to the time within which, the persons by whom, and the mode in which redemption may be effected, constitute a rule of property, obligatory as well upon the federal court as upon the courts of the state; and as the property sold was not redeemed in the particular mode prescribed by the local statutes, there was no effectual redemption, and, consequently, the company became entitled to a deed at the expiration of the period fixed for the exercise of the right of redemption.

The circuit court was of opinion, and so adjudged, that the rights of the parties as to the mode of redemption were to be determined by its rules; and since there had been a substantial compliance with them the application by the company for a deed was overruled. From the final order denying that application the present appeal is prosecuted.

It is necessary, at the threshold of the discussion, to ascertain in what particulars the statutes of Illinois and the rules of the federal court differ in respect of the manner in which redemption may be accomplished.

Edward S. Isham and C. Beckwith, for appellant.

[Argument of Counsel on pages 58-59 intentionally omitted]

W. R. Page and ''Geo. F. Edmunds'', for appellees.

[Argument of Counsel from pages 59-60 intentionally omitted]

HARLAN, J.