Borders v. Murphy

Citations

• 78 Ill. 81

Syllabus

<p>1. Decree—when not binding on party. A person not made a party, to a proceeding for partition, and who is not served with process, and who does not enter any appearance, is not bound by any decree rendered therein, and his interest or title in the premises will not be affected in the least.</p> <p>2. To bind a party by judicial sentence, he must be made a party to the proceeding, and must have either actual or constructive notice thereof, or enter his appearance.</p> <p>3. Attachment—service or levy essential to jurisdiction. In an attachment before a justice of the peace, where there is no personal service upon the defendant, or levy upon his property, and notice, as required by statute, the justice will have no jurisdiction to adjudicate and render judgment, and any judgment rendered will be a nullity.</p> <p>4. Redemption—under void judgment confers no title. Where a party redeemed land from a sale under an execution issued upon the transcript of a justice’s judgment, in a case where the justice had no jurisdiction, and acquired a sheriff’s deed on a sale under his execution, it was held, that the sale was a nullity, and passed no title whatever, but that the redemption money having been accepted, destroyed the prior sale and left the title to the land in the original owner.</p> <p>5. Limitation—must be pleaded, if relied on. No rule of practice is more firmly settled, than that, to render the Statute of Limitations availing as a defense, it must be set up and relied on by the pleadings; and this rule applies equally in equity and at law.</p> <p>6. Specific performance—contract to convey land in consideration of acts done enhancing value of residue. If the equitable owner of land agrees to convey an interest therein, subject to the approval of the holder of the legal title, to another, if the latter will build a depot and sidetrack near the same, and such party does build the same, at his own expense, with the knowledge of the holder of the legal title, whereb