delivered the additional opinion of the Court, on the rehearing :
The foregoing opinion, of September term, 1870, having been again considered by the court, on the re-argument allowed in this case, we see no reason for changing the views therein expressed. The counsel for appellee seems, from his argument, to misapprehend the position taken in the opinion. He cites various authorities for the purpose of showing that the holder of the legal estate under the mortgagor, is the proper complainant in a bill to redeem, and that it is immaterial whether he holds such estate as a trustee for others, or claims it in h'is own right by a conveyance from the mortgagor made without consideration. This proposition we have had no intention of denying, and it is hardly necessary to cite authorities in its support.
But the complainant in this case is asking something more from the court than its aid in the exercise of a plain right of redemption from an unforeclosed mortgage. He is also asking us to set aside a sale made some ten years before filing his bill, on the ground of an irregularity in the mode of conducting it, that is shown not at all to have affected its fairness, and at which sale a third person became the purchaser in perfect good faith, paying for the property a sum of money that, added to his own incumbrance, considerably exceeded its value, and receiving immediate possession in which he has been undisturbed until the filing of this bill. In this case, we should have probably held the delay of ten years in questioning the sale would have been, of itself, in view of the peculiar circumstances, a sufficient reason for not setting it aside, if that fact had been raised by the appellant in his answer, as required by the case of School Trustees v. Wright, 12 Ill. 441, an authority we are reluctant to overrule, but with which we are not altogether satisfied when applied to cases in which the laches appears upon the face of the bill. How, while we concede, as claimed by appellee’s counsel, that a grantee of the mortgagor, whether claiming as trustee for others or in his own right, and whether a purchaser for value or a mere volunteer, would have the same right to set aside the former sale as the mortgagor himself, yet it by no means follows that a court of equity would set it aside for the benefit of one who has acquired the naked title of the mortgagor in the mode disclosed by the present record. This mode is sufficiently explained in the former opinion. He paid nothing. His name was used merely because he was the clerk of the assignee. What became of the other property, in connection with which this was sold en masse, does not appear. But the assignee, probably regarding this property as lost by the foreclosure, neglects .to take from the complainant, his clerk, an assignment of the sheriff’s certificate of purchase, and ten years later the complainant sues out a sheriff’s deed, and, the assignment having long since been settled, claims to own this property in his own right, and on that ground files his bill asking the court to set aside, for his personal benefit, the sale made under the mortgage, and to decree a conveyance from Beach to himself as owner in his own right. In this bill, in which he claims the property as purchaser for a valuable consideration and owner in his own right, he makes Watkins a party defendant, with a view, we suppose, of cutting off any interest claimed by him. That the bill was not filed in the name of Shaw with the consent of Watkins, and for his benefit, is evident not only from the face of the bill, but from the evidence of Watkins himself, who was called by defendant as a witness, and from whose testimony it appears he knew nothing about the suit and had nothing to do with its prosecution.
The presumption from this record is, that he is entirely content with the sale under the mortgage, and has never sought, and does not now seek, to have it set aside.
When, then, we remember that the only persons who have any real interest in this property, entitling them to call in question the regularity of the sale under the mortgage, are either Watkins, or his assignee, Daniels^ as trustee for Watkins’ creditors, or the creditors themselves named in the assignment, and that this bill sets up a title in complainant for his own use merely; and when we consider how this title was acquired, we must repeat what we said in our former opinion, that the complainant’s case is singularly bald. To say that it is like the case of a voluntary grantee of a mortgagor coming to redeem the mortgage, is an entire misapprehension of the true position of the complainant, as disclosed upon the face of this record.
But it is urged that though the complainant is not prosecuting this suit for the benefit of Watkins, he is prosecuting it as trustee for the unpaid creditors of the second class in the assignment from Watkins to Daniels, or at least, that the court .can not say he is not so prosecuting it. It is enough for us to say that he does not stand in that position on the record. He is here claiming to own this property in his own right, and the proof shows that he does not. The proof shows that if Watkins and his creditors in the assignment to Daniels, are satisfied with the sale under the mortgage, it ought not to be disturbed. When the complainant insists in the argument that he is appearing for the creditors, we must reply that he should have so stated in his bill, and Daniels and the creditors should have been co-complainants. We then should have had a bill which the proofs would have fitted. The absolute necessity of having not only Watkins before the court, but also Daniels, and the creditors for whose benefit the complainant pretends to prosecute, is manifest from this single consideration. The money paid by Daniels on the execution sale, when this certificate of purchase was issued to complainant, was paid out of the fund held by him as assignee. How, if those debts are paid or discharged, the residuary interest in the property would go back to Watkins, and he would be the person entitled to redeem from Beach. But he, in redeeming, would clearly be obliged to pay, not only the mortgage under which the sale to Beach was made, but also the Beach mortgage. Whether the creditors under the assignment would be equally obliged to redeem from the Beach mortgage, is a much more difficult question, and one which we ought not to decide without giving them an opportunity of being heard. Beach also should have an opportunity of contesting the indebtedness claimed to be due.
Our view of the case is briefly this, and we re-state it to prevent a further misunderstanding, either willful or unintentional : The only persons entitled to call in question the regularity of the sale to Beach, are Watkins, occupying the position of mortgagor, Daniels, his assignee, or the creditors, through Daniels as their trustee. If these parties are content to waive the irregularity in the sale, no one else has a right to complain. If, however, they or any of them wish to redeem, while the bill would be properly filed in the name of Shaw as the grantee in the sheriff’s deed, they should also be made parties, in order to a proper taking of the account and a proper adjustment of all the equities, and the bill should be framed for the assertion of their equities and to meet the facts as they exist. If they do not wish to prosecute, this complainant has no equities of his own to assert, and the unavoidable inference would be that the legal title which his counsel urges so strenuously, as vested in him by the sheriff’s deed, was obtained by an improper use of the sheriff’s certificate of purchase, without the concurrence of the real owners, ten years after it was filled out in his name, as clerk of the assignee. If, without the knowledge of Watkins, or of Daniels, or of the creditors, he has at this late day discovered this certificate, and by procuring a sheriff’s deed, sought to acquire the title to this property for his own behoof, then, notwithstanding he has, upon the face of the papers, the title of the mortgagor, yet we must hold, when he comes into court asserting such title as his own, he comes with no equities in his favor that should induce the court to disturb a sale that has never been questioned by any of the parties having an actual interest in the property.
Of course we speak only of his claim as presented upon this record. If he is prosecuting this suit for the benefit of persons having an interest in this property, which entitles them to question the sale, they should be brought before the court as parties to a bill framed to correspond with the facts. The complainant will have leave to amend his bill and make new parties, upon paying the costs.
The decree is reversed and the cause remanded.
Decree reversed.