Arthur H. Evans filed an amended and supplemental intervening petition in the circuit court of Cook county, alleging that on January 29, 1914, certain real estate in Cook county was registered in his name and the certificate of title was issued to him, and that he has not executed any conveyance or incumbrance of the premises and is still the real owner thereof; that afterward, shortly prior to November 13, 1916, the Chicago Title and Trust Company, as administrator of the estate of Josef Tuma, deceased, without notice to the petitioner, obtained a judgment against him by confession in the circuit court of Cook county, which was rendered before the maturity of the note upon which it was entered and before any default in the payment of principal or interest; that no certificate or transcript of said judgment was filed in the office of the registrar until February 9, 1920; that on April 10, 1917, the sheriff of Cook county made a sale of the premises to the Chicago Title and Trust Company, as administrator of the estate of Josef Tuma, under an execution issued on the judgment, but no certificate of levy was filed in the office of the registrar, nor was any certificate of the sale filed in the office of the registrar until February 9, 1920, after the expiration of the period of redemption; that on that day a transcript of the judgment and a sheriff's certificate of the sale were filed in the office of the registrar, and on or about December 9, 1921, the sheriff of Cook county made a pretended deed of conveyance of the premises to the Chicago Title and Trust Company, as administrator of the estate of Josef Tuma, pursuant to the execution sale, which was filed in the registrar's office on March 30, 1922; that the books in the office of the registrar show that a certificate of title dated March 30, 1922, was issued to the Chicago Title and Trust *Page 14 Company, as administrator of the estate of Josef Tuma, purporting to show the title to the premises vested in such administrator, but the petitioner is informed and believes, and states the fact to be, that the registrar refused to transfer the title to the Chicago Title and Trust Company as administrator, and on August 21, 1922, no certificate of title had been issued to it and the title had not been transferred to the administrator; that all of the proceedings were without notice to petitioner and without complying with the requirements of the statute with reference to real estate registered under the Torrens act, and by reason of the premises neither the judgment nor execution became a lien upon the premises, the sale thereof by the sheriff was void, the purchaser at the sale and grantee in the deed obtained no right, title or interest in the premises, and the transcript of judgment, certificate of sale and sheriff's deed should be stricken from the files, the memorials thereof expunged from the records, the title to the premises confirmed in the petitioner and proper certificate issued to him therefor. It was further averred that the petitioner had caused demands to be made upon the registrar for the cancellation of the supposed certificate of title purporting to have been issued to the Chicago Title and Trust Company as administrator and the expunging of the memorial thereof showing title in the petitioner, but the registrar has wholly refused and still refuses to comply with such demand; that on or prior to August 21, 1922, the Chicago Title and Trust Company, as administrator, entered into negotiations with Frank Jana for the sale of the real estate to him, and informed him that the administrator had not yet obtained any certificate of title and the registrar had up to that time refused to issue such certificate, for the reason, among others, that the sheriff's sale, certificate and deed were void, and accordingly an agreement was entered into between the Administrator and Jana whereby Jana agreed to purchase the premises and to pay $700 for them upon condition that the *Page 15 administrator should obtain a certificate of title issued to it by the registrar, but that if the administrator should be unable to secure such certificate of title then Jana should pay $600 for such title, if any, as said administrator had in the premises; that on August 22, 1922, an order was entered in the probate court of Cook county authorizing the administrator to enter into this contract, and on April 12, 1923, a deed was filed in the office of the registrar, dated December 20, 1922, from the Chicago Title and Trust Company, as administrator of the estate of Josef Tuma, purporting to convey to Jana, for the consideration of $600, the premises, and the registrar is about to issue to Jana a certificate of title, and will do so unless restrained by the order of the court; that Jana, at the time of entering into the contract for the purchase of the premises, before making any payment on the purchase price, had notice and actual knowledge of the rights and interests of the petitioner and that the administrator did not have title to the premises, that the sheriff's sale, certificate and deed were void, and that the administrator was attempting to sell the premises for $100 less than the agreed purchase price because it could not obtain a certificate of title to the premises; that the Chicago Title and Trust Company had knowledge of all these facts, and its acts in attempting to sell and convey the premises to Jana in disregard of the petitioner's rights were fraudulent and void as to the petitioner. The Chicago Title and Trust Company, as administrator of the estate of Josef Tuma, Joseph F. Haas, registrar, and Frank Jana, were made defendants to the petition. Demurrers were filed by the defendants, which the court sustained, the petition was dismissed, and the petitioner appealed.
Section 85 of the Torrens law provides that no judgment shall be a lien upon or affect registered land, or any estate or interest therein, until a certificate under the hand and official seal of the clerk of the court in which the same is of record, stating the date and purport of the judgment, *Page 16 or a certified copy of such judgment, is filed in the office of the registrar and a memorial of the same is entered upon the register of the last certificate of title. Section 86 requires that whenever registered land is levied upon by virtue of an execution, a certificate of levy shall be filed with the registrar and a memorial thereof shall be entered upon the register, and no lien shall arise by reason of the levy until such filing and entry. When any registered land is sold by virtue of any execution or judgment, section 87 requires the officer making the sale, instead of filing a duplicate of his certificate of sale in the recorder's office, to file it with the registrar, and requires the registrar to enter a memorial thereof upon the register in the same manner as other memorials. Section 88 provides that no transfer of title shall be made by the registrar in case of any sale of registered land by an officer pursuant to a judgment, decree or order of the court, except upon the surrender and cancellation of the outstanding certificate of title or upon an order of the court filed with the registrar directing such transfer. Section 90 provides that no statutory or other lien shall be deemed to affect the title to registered land until after a memorial thereof is entered upon the register, as provided in the act. The judgment by confession, the execution thereon, the certificate of the levy and the certificate of sale, under these sections did not in any way affect the title to the premises in question or constitute any lien upon them. The registrar was not authorized to make any transfer of the title, and the proceedings were all void.
The appellees contend that the petitioner is not entitled to any equitable relief because the judgment entered against him by confession was a valid judgment; that while his property has been taken and transferred to the judgment plaintiff the judgment defendant is not harmed, even supposing the procedure by which his property was taken was illegal and ineffective in a court of law, because his obligation has been satisfied, and they say that he who seeks equity *Page 17 must do equity and a chancellor will not enforce mere technicalities at the sacrifice of justice. The maxim is not applicable in this case. It is true that a court of equity will not take away from a party a legal advantage which he has acquired without fraud as a means of securing a just debt, in favor of a party who does not deny that he owes the debt but claims only the right to defend against a claim to which he has no defense. The appellant did not seek to have the judgment against him set aside or to defend against the claim on which it was founded. He merely seeks to remove a cloud upon the title to his real estate by reason of a void sheriff's deed. The judgment of the administrator will be unaffected by a decree setting aside the deed and expunging the memorial of the certificate of sale and deed. The administrator may still proceed to collect its judgment in the manner provided by law.
The court erred in sustaining the demurrer to the petition, and its decree will be reversed and the cause remanded, with directions to overrule the demurrer.
Reversed and remanded, with directions.