delivered the opinion of the Court:
The motion to dismiss the appeal is overruled. The decree taking from appellant the benefits of the decree previously rendered in his favor and transferring them to appellee Windett, is so far final between them that an appeal will lie to have it reviewed. It finally fixes the rights of appellant, and the court below so treated it in its order of December 3, 1891. At the instance of appellee Windett the court then held that Burgess, “by reason of the decree entered in this cause on the 5th day of November, 1891, has no standing in court, and refused to hear him, touching the same.”
Neither do we think it can be said that the record is brought up piecemeal, because the decree by Judge Wright leaves it undetermined which of the parties may redeem. That question had been settled by the former decree, in Windett’s favor. If this court should affirm the last named decree, and sustain the finding as to the amount due Mrs. Buggies, nothing would remain to be done in the Superior Court. If, on the other hand, that decree should be reversed and the one in favor of Burgess’ right to redeem affirmed under the assignment of cross-errors, it would only be necessary to remand the cause with directions, to give effect to that decree. And, finally, if both decrees to redeem are found to be erroneous, as they must be, and the cross-errors sustained, our judgment will be final, simply remanding the cause with directions to dismiss all bills and cross-bills to redeem. Therefore, in any view of the case, no good reason appears for farther protracting this litigation by dismissing the appeal and sending the cause back to the Superior Court.
On the merits of the case, the first question arising in natural order is, can the decree of June 21,1889, giving Burgess a right to redeem, be sustained, because, if it can not, that of November 5, 1891, in Windett’s favor, must also fail, the latter being merely a transfer of the benefits of the Burgess decree to Windett.
The sale under the trust deed, and the conveyance made in pursuance thereof, vested the legal title to the lot in question in Hurlbut, subject only to be avoided by Windett,—in other words, conceding all that is claimed against the validity of that sale, it was voidable only, and not void. Windett might abide by the sale, or disaffirm it, as he pleased. (Jenkins v. Pierce et al. 98 Ill. 653, and cases cited.) He chose to avail himself of the right to disaffirm it, and filed his-bill accordingly, which was prosecuted to a final decree, giving him the right to redeem within ninety days from December 10, 1883. Failing to exercise that right within the time limited, on March 10, 1884, he obtained an order extending the time to June 4, 1884, and that order expressly provided, if the redemption money was not paid by that date, the sale to Horace A. Hurl-but, made on the 16th day of September, 1882, under the trust deed, and the title of Hurlbut to said lot, should “stand confirmed and unimpeached,” and his bill be dismissed, with costs, without further order. This decree was the proper one to be made in such case, as we held in Bremer et al. v. Canal and Dock Co. 127 Ill. 493, citing the authorities. He again failed to make the redemption, but suffered the last named date, June 4, to go by without paying the redemption money, and from that time to the present, in all the volume of pleadings filed in the case by himself and Burgess, not the slightest excuse or explanation as to why he did not do so has been offered.
What, then, was the condition of the title to the lot after June 4, 1884? Burgess himself answers the question in his last amendment to the Sawyer-Goodman Company bill, to which he had previously become the party complainant. He says: “The said Windett not having complied with the terms of said order and paid the money necessary to redeem the said lands and premises from said trust deed, his bill of complaint aforesaid was, by final decree of said court, dismissed out of court for want of equity, and the title of said Hurlbut, under the trustee’s sale and deed to him aforesaid, became absolute, and irredeemable by him, said Windett, whereby the said Windett became and was barred of all right, title and interest in said lands and premises, including the right of homestead therein.” And yet, more than three years after all Windett’s right and title in said lot had become vested in Hurlbut, (on November 9, 1887,) the same was sold as the property of Windett, and in pursuance of and under that sale title is set up against Hurlbut. Nothing, it seems to us, could be clearer than that from and after June 4, 1884, the absolute title to the property was vested in Hurlbut, for Mrs. Buggies, for whom he acted. The sale being voidable, Windett had left in him an equitable interest in it, but after the decree of June 4 all his right, title and interest, legal and equitable, were gone. “Such a sale can be set aside only at the option of the cestui que trust, and that must be determined in apt time. He has an election to treat the sale as valid, if he will.” (Hamilton v. Lubukee et al. 51 Ill. 415.) Neither Francis Salter, nor the Sawyer-Goodman Company, could, after that time, legally levy on it as the property of Windett, much less could Burgess get a title under them upon which to base a right to redeem. If these parties had filed their bill in due time, asking a court of equity to allow them to redeem as creditors, a very different case would have been presented.
But what is the position of Burgess in a court of equity, and what does he seek to.do? He does not claim, as we understand, and certainly could not, under the evidence in the case, claim, to occupy the position of a creditor of Windett, asking a court of equity to allow him to redeem. He was never the bona fide owner of the Sawyer-Groodman Company judgment. It was only assigned to him for the purpose of collection. He never claimed the right to control the Salter judgment in any way. He is then driven to the position taken in his bill, that he is entitled to redeem as owner of the property. Unless it can be maintained that an owner of real estate can be divested of his title by a levy and sale of it, as the property of a stranger, he got no more right, title or interest in lot 98 by the pretended sheriff’s sale and deed than he would have received if Windett had never pretended to own it. The very foundation of his claim of right to redeem, viz., his title to the property, failing, it is too clear for argument that he could have no standing upon the bill under which his decree was rendered.
There is another reason why the decree in question can not be upheld. It is not in the interest of right and justice. There is nothing in the case made by the bill upon which it was rendered, appealing to the conscience of the court to grant the relief prayed. On the contrary, when considered in the light of the evidence, the case is purely one of speculation on the part of appellant. Even as to one having a right to redeem, the rule is, “where the sale is attacked, not as simply void for non-compliance with the power, but as voidable on equitable considerations, having reference to the unfair mode in which the power has been executed, the decision must turn upon a comparison of the equities,” (Burr et al. v. Borden et al. 61 Ill. 395.)
No good purpose would be served by reviewing the evidence bearing upon this view of the case. The findings of the court, upon which the subsequent decree was based, clearly establish the fact that Burgess could have no standing in a court of equity as against any one having a legal or equitable interest in the property. The decree in his favor was clearly erroneous, and should be reversed.
There is, if possible, still less reason for the position that Windett is entitled, in equity, to the benefit of that decree as against Hurlbut. As above shown, he had his day in court, and was allowed the relief he asked. Instead of availing himself of that relief he elected to allow the title to “stand confirmed and unimpeached” in Hurlbut, and suffered his “bill to stand dismissed.” What difference could it possibly make to him, after that time, who got the property, except as he desired to see his honest debts paid ? He shows, by his answer and proofs, that Burgess was not entitled to the decree in his favor, and yet asks a court of equity to give him the benefit of that decree.
It is said in the decree under which Windett now claims, that Burgess acted in the premises as his trustee, and that Burgess acquired and now holds the legal title, and the benefit of said decree of June 21, 1889, for Windett’s sole use and benefit. While the cross-bill under which his decree was rendered is pregnant with allegations of bad faith, breaches of confidence, violations of professional duty and fraud on the part of Burgess toward him, as to other parties, and other transactions, we have been unable to find, either in the allegations of the cross-bill, the evidence or the findings in the decree, wherein he, at any time, occupied a trust or confidential relation toward Windett as to this lot 98, or that he in any way or at any time, in a legal sense, interfered with or obstructed his efforts to redeem the same.
We express no opinion as to the merits of the controversy between these parties, arising out of the transactions set up in the cross-bill, but we think it too clear for argument, that such controversy can not be made the basis of a de.cree allowing Windett to redeem the property here in question. As before said, his right to redeem was established, and, so far as this record shows, he voluntarily waived that right and chose to let the title stand in Hurlbut. We think the decree upon which he relies, set out at length in the abstract, refutes and condemns itself. It allows Windett to do indirectly that which it is conceded he could not do directly.
In our view of the case, the Superior Court erred in not denying both Burgess and Windett the right to redeem lot 98, and in not dismissing all bills, amended bills, cross-bills and amended cross-bills praying that relief, at the costs of the complainants therein.
In this view of the case, whether or not the decree of July 16, 1892, correctly fixes the amount due Mrs. Buggies, is unimportant. That, and each of the other decrees above mentioned, will be reversed, and the cause will be remanded to the Superior Court, with directions to dismiss the bills and cross-bills as above indicated; and it is ordered that the costs in this court be paid by the appellant, William T. Burgess, and the appellee A. W. Windett, each paying one-half thereof.
Decree reversed.