Conwell v. Watkins

Citations

• 71 Ill. 488

Syllabus

<p>1. Practice—how and when want of parties to a hill can he taken advantage of. The want of proper parties to a bill in chancery can not be taken advantage of, for the first time, in the Supreme Court, unless it appears that parties are omitted whose rights are so connected with the subject matter of the suit, that a final decision thereof can not be made without materially affecting their interests.</p> <p>2. Where the want of proper parties is apparent, advantage should be taken of it by demurrer or by motion to dismiss; if not patent, by plea or answer.</p> <p>3. Return oe execution—presumption. Where an execution was issued and placed in the hands of a sheriff', who levied it upon real estate, but proceeded no further with it, and it was found several years after-wards in the clerk’s office, it will be presumed that the sheriff returned it there, as it was his duty to do so.</p> <p>4. Lien—levy of an execution on real estate. The levy of an execution upon real estate has no force in the creation of a lien, except in the single instance where the execution is issued to a foreign county, and a certificate of levy recorded as the statute requires.</p> <p>5. Judgment lien—not continued beyond seven years by levy of an execution. The lev\\' of an execution on land in the county where the execution issues, creates no lien on the land; in such case the lien, if any exists, is that of the judgment, and the levy of an execution will not operate to continue the lien of the judgment beyond the statutory period of seven years.</p> <p>6. Cloud upon title — subsequent sale on execution. Where a judgment. tvas rendered in 1858, and an execution issued upon it and levied upon real estate in June, 1858, and no further steps taken until in February, 1867, w'ken the property was advertised for sale under the execution, and sold, it was held, that''the sale could not be sustained, and the title acquired under it should beset aside as a cloud upon the title of one who had become th