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Champaign County Bk. & T. Co. v. Brewer

OPINION FILED AUGUST 25, 1978.

CHAMPAIGN COUNTY BANK AND TRUST COMPANY, PLAINTIFF-APPELLANT,

v.

DAVID C. BREWER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff bank appeals from an order of the circuit court, entered pursuant to a rule to show cause, finding that the bank wilfully and contumaciously refused to pay the sheriff the amount of its bid of the sale on execution, adjudging that such refusal to pay the sheriff constituted wilful and contumacious contempt of court, ordering that the bank shall pay the amount of the bid and interest within 5 days, and that upon refusal to so pay the bank will be fined $100 per day. The trial court made a finding that there was no just reason to delay appeal or enforcement of the order.

The bank also seeks to appeal from the order of the trial court, dated August 11, 1977, which:

"* * * in effect, confirmed a Sheriff's sale of real estate held pursuant to an Order of the Court of January 14, 1977, which said sale Plaintiff-Appellant contends was illegal and invalid; * * *."

And:

"Plaintiff-Appellant prays that said Order be declared null and void and be set aside, rescinded and held for naught, and further that the Court declare said Sheriff's sale illegal, invalid, and void."

In February 1974, the bank sued to foreclose a mortgage joining as defendants, Brewer, as mortgagor, McPherson, president of the bank who held a second mortgage, and Thompson Lumber Company, a judgment creditor of Brewer. At the time of such suit, the construction upon the mortgaged real estate had been abandoned, and there was the possibility that the premises would be declared a nuisance.

In August 1974, the trial court entered judgment upon foreclosure in favor of the bank in the amount of $33,427.42, and found existing liens as judgment creditor against the Brewers in favor of McPherson in the sum of $5,366.13, and Thompson in the sum of $17,261.38. On October 4, 1974, the bank purchased the property for debt interest and costs in the sum of $35,988.00, and a certificate of sale was issued. The bank procured a quitclaim deed and assignment of the right of redemption from Brewer. Thompson refused to sign its right of redemption.

On January 21, 1975, Thompson wrote to the bank informing it that Thompson was contemplating redemption of Lot 44. Although not reflected by the record, at that time the residence being constructed on Lot 44 was approximately 90 percent to 95 percent complete and had an estimated market value of $80,000.

On March 26, 1975, the bank executed a promissory note in favor of Ross J. Trippiedi, a vice president of the bank, as trustee, in the amount of $80,000, and a trust deed in his favor covering Lot 44, but no money changed hands. The note covered expenses of constructing the residence on Lot 44.

The next day, March 27, the bank recorded the Trippiedi trust deed and, together with McPherson, as trustee, obtained a judgment by confession in the sum of $5,826.72 against the Brewers in cause No. 75 L-249 in the circuit court of Champaign County. The judgment was rendered on the Brewers' promissory note which had been secured by the second mortgage in McPherson's favor. Execution was issued and placed in the hands of the sheriff of Champaign County, who levied against Lot 44 on March 31, 1975.

On this latter date, the bank executed a receipt in favor of McPherson, as trustee, for the amount of the sale price of Lot 44 plus interest. In actuality, no funds were paid by McPherson to the bank. The bank presented this evidence of payment to the sheriff who issued a certificate of redemption to McPherson, which was recorded. Although not reflected of record, the certificate recited that McPherson was redeeming as a judgment creditor.

On April 4, 1975, Thompson filed, in the circuit court, a petition for additional relief wherein it prayed that the court order the sheriff of Champaign County to distribute the proceeds from any sale of Lot 44: (1) To satisfy the costs of the sale, (2) to McPherson, as trustee, the redemption sum plus interest, (3) to the bank and McPherson, as trustee, the amount of the confessed judgment plus interest, and (4) to Thompson, the amount of its judgment lien plus interest. Thompson contended that by virtue of McPherson's redemption the sheriff was required by the terms of section 20 of "An Act in regard to judgments and decrees * * *" (Ill. Rev. Stat. 1975, ch. 77, par. 20), to offer Lot 44 for sale. The bank answered to Thompson's petition on May 2, 1975, denying the applicability of section 20 and that the sheriff was required to sell Lot 44.

As an affirmative defense, the bank listed the sums it had expended to improve Lot 44 and prayed by way of answer that, in the event that the court held that Lot 44 had to be sold, the sheriff should in all equity be required to distribute the proceeds: (1) To satisfy the costs of the sale, (2) to the bank and Trippiedi, as trustee, and to John Kenny, the building contractor, the sum of $56,615.72, being the amount of funds expended by the bank for construction, (3) to McPherson, as trustee, the amount of the confessed judgment plus interest, and (4) to Thompson, the amount ...


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