delivered the opinion of the Court:
It is first claimed by appellants that the decree is erroneous, for the reason that Mrs. Rogers is estopped from setting up a claim upon her mortgage as against the improvements placed on the property by them before the decree was reversed.
In Davidson v. Young, 38 Ill. 146, this court held, that “the doctrine of estoppels in pais or equitable estoppels is based upon a fraudulent purpose and a fraudulent result. If the element of fraud is wanting there is no estoppel; as, if both parties were equally cognizant of the facts, and the declaration or silence of the one party produced no change in the conduct of the other, he acting solely on his own judgment. There must be deception, and change of conduct in consequence, in order to estop a party from showing the truth. ” This decision will be found to be in harmony with the current of authority on the subject.
But does the evidence relied upon by appellants bring Mrs. Rogers within the rule announced ? It seems quite clear, from the proof, that Mrs. Rogers was well acquainted with the situation and value of the property; that after it was bid off under the decree, the certificate of purchase was offered to her at a discount of $50; that she declined to buy the certificate or redeem from the sale, and in substance said she -would do nothing more about the matter. This occurred in the summer of 1874, soon after the sale of the property under the decree. At the time the house was built, in August, 1876, it does not appear that Mrs. Rogers said or did any thing, or that there was any interview between her and appellants immediately before the building was commenced, or while it was being erected. We see nothing in this evidence to create an estoppel in pais. No fraud was shown on her part, nor was there any deception. The fact that in 1874 she declined to buy the certificate of purchase or redeem from the sale, and said she should do nothing more about the matter, could not, in any manner, deceive appellants, nor do we believe that such conduct or declarations induced them to do^anything in reference to the property that they otherwise would not have done. They, at the time, did nothing in consequence of the declarations, but waited until the time of redemption had expired, and took out a deed, and after they obtained a deed, in August, 1876, they erected the house. From the facts the more reasonable presumption is, that appellants erected the house relying upon the validity of the title they had acquired, rather than upon anything said or done by Mrs. Rogers, and if such was the case, they can not claim or rely upon the doctrine of estoppel.
It is next urged that appellants may be regarded as holding the property as mortgagees in possession, and thus be entitled to recover for money in good faith expended in improvements. There are cases which hold that a mortgagee in possession may lay out money to keep the estate in necessary repair to preserve it; but even a mortgagee is not authorized to make new improvements, except under very extraordinary circumstances. But appellants can not be treated as mortgagees in possession. They took possession of the property as owners, under a title acquired by virtue of a sale under a decree in a cause in which they were parties to the record. They occupied a different position from a mortgagee. The law which regulates the rights of purchasers under a judicial sale, where the judgment or decree under which the purchase is made is subsequently reversed, is well settled. A party to an erroneous judgment or decree is presumed to be cognizant of all errors in the record, and a reversal restores the parties to their original rights. The title acquired under an erroneous judgment is divested by the reversal, unless it has been purchased by a stranger to the judgment, without notice. McJilton v. Love, 13 Ill. 491; Wadhams v. Gay, 73 id. 415.
If we are correct in this view, it follows, as a necessary result, that money invested by appellants in the erection of a house on the property, was invested at their peril, and subject to the rights of appellee under her mortgage. There is a seeming hardship in the case, but that will not justify a departure from the well settled rules of law. Appellants are presumed to have known that the decree under which they obtained title was erroneous. They knew that appellee had five years from the rendition of the decree to sue out a writ of error, and knowing these facts they had no right to expend a large sum of money in erecting a house on the property,— at least they took upon themselves the hazard of losing the money so expended.
But it is said the decree of the circuit court of Kane county, rendered in March, 1878, on the bill of review filed by appellee, against appellants, is a bar to the relief claimed by her in this proceeding. The bill which appellee brought was merely a bill of review to impeach the decree which had been rendered in the lien case, for error appearing upon the face of the record. The court, on the hearing, found that there was no error in the decree, and dismissed the bill. It may be, if appellants had pleaded the decree rendered on the dismissal of the bill of review in bar of the writ of error which was subsequently sued out to reverse the decree in the lien case, they might have prevented a reversal; but after the decree in the lien case was reversed and the cause remanded, how the decree in the Kane circuit court can be held to be a bar to a proper distribution of the money arising from a sale of the property in this case, we can not understand. As said before, the question presented by the bill of review was, whether there was error in the decree in the lien case. That was the question determined. Upon that point that decree might he regarded as final, but as the question here involved is a different one, that decree can have no bearing upon it.
There is, however, one point upon which the decree of the circuit court can not- be sustained. The decree directed the surplus, after the payment of the mechanics’ lien and the Rogers mortgage, to be brought into court. Stout, the defendant in this case, has never interposed any defence. He was defaulted. He finds no fault whatever with the decree. All that Mrs. Rogers can claim, is the amount of her- mortgage. Under such circumstances we see no reason why the surplus, after the mechanics’ lien and mortgage debts are paid, may not be decreed to appellants, to apply upon the improvements made on the property, and the taxes paid.
Appellee has assigned several cross-errors, which remain to be considered. It" is said that the allegations of the petition as to the time of payment are not sufficient. It is alleged that the lumber was to be delivered as fast as needed, and all to be delivered during the spring and fore part of the coming summer, and to be paid for within five or six months from the time the lumber was to be delivered. From the averment it is apparent that the lumber was to be delivered and paid for within one year from the date of the undertaking, and under the ruling in Clark v. Manning, 90 Ill. 380, that was sufficient.
It is also claimed that Mr. Brady, agent of Rogers, called on appellants before the loan was made to Stout, and they informed him that they had no lien on the property, and hence they are estopped from insisting upon a lien as against appellee’s mortgage. As to this point the evidence is so conflicting that a decree defeating the lien could not, with any degree of certainty, be predicated upon it. One witness testified that such a conversation occurred, while two deny it. Without undertaking to determine which witness was mistaken, as they all seem to he credible, it is sufficient to say-that the court did not err in refusing to sustain the defence, so far as it was predicated on this evidence.
It is also claimed that the amount of the decree is $300 more than was due from' Stout. The account of appellants, as shown by the hooks, was $864, less a credit of $130.10,— leaving a balance of $733.90. On the trial of the bill of review, appellant Powell, on cross-examination, testified: “Stout paid us, out of the Rogers money, a little over $300, and reduced the claim to $700, or thereabouts,—the books show the amount.” • We do not think this statement impeaches the account as shown by the books, and as was testified to be correct. The witness did not pretend to be . accurate as to the amount which had been paid, but in the statement expressly referred to the books to show the true state of the account. ■ The statement was a mere unguarded remark, where the amount of the account was not directly in issue, which does not in any manner" impeach appellants’ evidence introduced on the trial of this cause, which shows the amount of the account they held against Stout.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.