Webber v. Mackey, 4 Ill. App. 458 (1879)

Nov. 1, 1879 · Illinois Appellate Court

4 Ill. App. 458

Charles Webber, by his next friend, v. William Mackey et al.

Vendor’s men—Foreclosure—Redemption.—The court is of opinion that the time fixed by the decree in this case for the payment of the money, ivas too short. The appellant was a minor, the claim was in the nature of a vendor's lien, and by the statute, redemption is allowed in case of sale under foreclosure of a vendor’s lien, and in analogy to that statute, the same time for redemption should have been allowed in this case.

Appeal from the Circuit Court of Carroll county; the Hon. John V. Eustace, Judge, presiding.

Opinion filed November 1, 1879.

Messrs. Armour and Shaw, for appellant.

Mr. C. B. Smith, for appellee;

that affirmative relief may be granted in chancery, where all the parties and all the equities are before the court, without the filing of a cross-bill, cited Kern v. Zink, 55 Ill. 449; Thielman v. Carr, 75 Ill. 385; Atkinson v. Cash, 79 Ill. 53; Labadie v. Hewitt, 85 Ill. 341; Nyburg v. Pearce, 85 Ill. 393.

Per Curiam.

After having fully considered all the assignment of errors in this cause, we find no error in the record as to the decree of the court below, except that in our opinion the time fixed by the court, thirty days, in which the appellant should pay the money decreed by the court to be paid by him to appellee (and in failure thereof, all his equities were to be barred), was too short.

The appellant was a minor and should have had a reasonable time to make the payment. The claim was in the nature of a vendor’s lien, and by the statute, redemption is allowed in case of sale under foreclosure of a vendor’s, lien. In analogy to that statute, we think the same time should have been allowed.

It is therefore ordered, adjudged and decreed by this court that the decree of the court below he so modified that the appellant shall have one year from March the 15th, 1879, in which to pay the said sum of money in the decree of the court below mentioned, and that his equities shall not be barred until after the expiration of said time. In all other respects the decree of the court below is affirmed.

Ordered that appellee pay all the costs of this court.