Opinion of the Court. under an executory contract of sale of the lands in question, but only a portion of the purchase money having been paid. There is nothing in the record tending to show that the strict relation of landlord and tenant existed between Harris and Sturtevant at the time the suit against the latter was brought in the Federal Court by Kibbie, or during its pendency. Counsel rely upon a virtual relation of that nature arising by implication of law, and, in argument for appellant, they assume that notice of the pendency of the suit against Sturtevant was given to Harris, wherefore they say he is concluded by the judgment. It is not pretended that Harris was brought or came in to defend the suit against Sturtevant, so as to become a party to the record. His title was so connected to and consistent with the possession of Sturtevant, the occupant, that he might properly have been let in to defend in that action. Williams v. Brunton, 3 Gilm. 600. But he was not, and the question is, whether, the relation of vendor and vendee existing under an unperformed contract of sale and purchase, the vendor, under the circumstances of this case, is concluded by the judgment against the vendee. It is insisted, on behalf of appellant, that he is; but this result is predicated upon the fact of notice or knowledge of the pendency of the suit against the vendee. Upon that question there was a contrariety of testimony, and it was for the court below, sitting in the place of a jury, to determine with which party was the weight of the evidence, The court having found for the plaintiff, then, if the fact of notice was material, the presumption would be indulged that the finding was against the alleged notice. But was it material, or, in other words, would Harris be concluded by the judgment against his vendee, to which he was not a party, even if notice had been shown by positive, uncontroverted evidence? By the common law, a judgment in ejectment was not conclusive upon the title of either of the parties to the record; but an innovation has been made, by statute, upon this rule of the common law, Opinion of the Court. By the 29th section of our original Ejectment act, it is provided: "Every judgment in the action of ejectment rendered upon a verdict, shall be conclusive as to the title established in such action upon the party against whom the same is rendered, and against all persons claiming from, through or under such party, by title accruing after the commencement of such action." The only other provision as to the effect of the judgment, contained in the statute, is in the 31st section, which gives the same identical effect, after two years, to a judgment by default. No proposition could be plainer than that Harris, the vendor, did not claim from, through or under Sturtevant, his vendee, by any title accruing either before or after the commencement of Kibbie's action against Sturtevant. If, therefore, the judgment against the latter can be held conclusive upon Harris, it must be upon the ground that he was in some way, theoretically or constructively, a party against whom the same was rendered. It is a general rule, that statutes are not to be presumed to alter the common law farther than they expressly declare. But whether the court apply that rule, or the statute in question be construed liberally according to its fair intent, the word "party," when applied to a defendant, can only mean the person or persons named as defendant or defendants in the judgment. Our statute, in this respect, is but a copy of that of New York. The latter received a construction by the Supreme Court of that State, in 1841, Nelson, Ch. J., delivering the opinion of the court. After quoting the language of the act, which is identical with ours, the court said: "It is plain the act applies only to the party or parties to the record and privies. The mere retainer of an attorney, or other acts by the party in interest to defend the suit, does not bring the case within the act, nor should the application of the provision turn upon any such extraneous matters. The record of the suit should Opinion of the Court. be the test, and must be, as it respects the person against whom the verdict is rendered." Byerss v. Rippey, 25 Wend. 431. The judgment against Sturtevant was by default. Section 31, of the Ejectment act, declares: "Every judgment in ejectment, rendered by default, shall, from and after two years from the time of entering the same, be conclusive upon the defendant and upon all persons claiming from or through him, by title accruing after the commencement of the action." The word "defendant," here employed, is even more explicit than that of party, in the other section; for the law recognizes a party in interest as well as a party to the record, but a judgment by default can not be rendered against one not named as a party to the record. From these provisions and their context it seems very clear that the fair intention of the legislature was, to make the record in these as in other cases the test. For, as respects the person against whom the verdict is rendered in the one case, and the judgment by default in the other, the record must constitute the sole test. Upon those persons and privies the statute makes the judgment conclusive. Can the court extend the effect beyond that given by the statute, and not falling within recognized principles? As between the vendor and vendee themselves, if ejectment be brought against the latter, and he notify his vendor to defend, the judgment might, for some purposes, be held conclusive. But that is not the view in which it is claimed to be conclusive. It is that it is conclusive between the vendor and the party who brought ejectment against the vendee, and it is upon the ground of the relation of landlord and tenant by legal implication. It is true, the court, in Oetgen v. Ross, 47 Ill. 142, so held, where the strict relation of landlord and tenant subsisted. The basis of the doctrine was section 5, of the Landlord and Tenant act, requiring the tenant, under a penalty, to notify his landlord when sued in ejectment. 76 374 129 481 Syllabus. manner. The section just referred to, prescribes no form or manner of giving such notice to the landlord. If it had been intended that such notice should have the effect which the court, in that case, has ascribed to it, the legislature would, at least, have required that it be given in writing, or some formal The tendency of the doctrine is subversive of the principle which underlies the entire policy of our system, in regard to acquiring jurisdiction of the person. Why is so formal a notice by service of process indispensable to a valid judgment upon contract or in actions sounding in damages, when the most casual means of knowledge of a party's claim of title and suit brought may give jurisdiction to divest a man of the most valuable tracts of land? Nothing being required to appear of record, the door is opened for the grossest frauds and perjuries. It is a doctrine which ought not to be extended to any case where the strict relation of landlord and tenant does not exist. relation does not exist between vendor and vendee. The judgment of the court below should be affirmed. Such Judgment affirmed. ELLIS L. SWEET et al. บ. WILLIAM REDHEAD. 1. MARSHALING ASSETS. The rule in equity of compelling a first resort to a particular one of two funds for a creditor's benefit who can reach but one of them, will not be enforced when it trenches upon the rights or operates to the prejudice of the party entitled to the double fund, or works injustice. 2. Where A and B executed a deed of trust on 80 acres of land to secure a note given by them, and afterwards, for the purpose of releasing 10 acres of the same, in use for a cemetery, B and his wife gave their trust deed on 17 acres owned by B to secure the payment of the same note, and it appeared that, at the time of the execution of the last named Opinion of the Court. deed of trust, A and B had given two other mortgages on the 80-acre tract, one to C for $1500, and the other to D, the then holder of the note secured by the first deed of trust, for $2500; that the mortgage to C had been foreclosed and sold to E; and after the execution of the several deeds of trust and mortgages, the complainant purchased the 17-acre tract, and who then filed his bill to compel D and the trustee to sell the 80-acre tract before the 17-acre tract: Held, that the complainant, having purchased after the giving of the two mortgages, had no higher equity than the holders under the mortgages, and that, as the sale of the 80-acre tract first might destroy the mortgage securities, it would be unjust and inequitable to so decree. APPEAL from the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding. Messrs. SWEET & DAY, for the appellants. Messrs. A. M. & H. W. AYERS, for the appellee. Mr. JUSTICE SHELDON delivered the opinion of the Court: The case presented by the bill is this: On January 27, 1871, Samuel B. and Charles C. Troy ford executed a trust deed to Albert C. Burnham on 80 acres of land in Champaign county, to secure the payment of a certain promissory note to Oswin Wells. The bill alleges that 10 acres of the tract were used for a cemetery, and for the purpose of so using the 10 acres, and for a further and collateral security of the same note given to Wells by Samuel B. and Charles C. Troyford, Charles Troy ford and Mary Troy ford, his wife, on the 27th day of April, 1872, executed their trust deed to Burnham on a tract of land of 17 acres in the same county; that Sandford Richards had become the owner of the note, and that Ellis L. Sweet had become successor in trust to Burnham, pursuant to a provision in the trust deeds, and there having been default in payment of the note, Sweet, upon the application of Richards, had advertised the two tracts of land for sale, for the purpose of payment of the note the 17-acre tract, as to be sold on the 23d day of March, 1874, and the 80-acre tract, as to be sold on the 30th day of March, 1874. |