Gould v. Sternberg

Citations

• 128 Ill. 510
• 21 N.E. 628

Syllabus

<p>1. Reversal—effect upon a prior sale under the judgment—as to parties and privies—and third persons. Where property of a defendant has been sold on a judgment, afterward reversed, to a party to such judgment, the defendant can recover it back. If the purchaser be a third party, he can recover from the plaintiff the value thereof; but the title to the property, in that case, will not be affected by the reversal. No one but the defendant or his assignee can take advantage of such reversal; and he may waive that right, or if he has lost nothing by the judgment, he can, of course, gain nothing by its reversal.</p> <p>2. A sale on execution, based on a judgment afterward reversed, is not absolutely void, but voidable, only, at the election of the owner of the property sold. If the property of a third person is sold in satisfaction of the debt, the defendant in the -judgment can take no advantage of the reversal.</p> <p>3. A creditor under a judgment sued out an execution thereon, under which he became the purchaser of a tract of land which the debtor had fraudulently sold and conveyed to another. The creditor then filed his bill against his debtor and his grantee, to set aside the conveyance of the former to the latter as fraudulent, and a decree was entered therein setting aside the conveyance and vesting the title in the complainant. The judgment under which the sale was made was reversed about the date of the decree, and no steps were taken for a rehearing in the chancery suit, or bill of review filed: Held, that the reversal of the judgment did not operate to divest the title of the creditor as vested by the decree, and that such decree could not be attacked collaterally.</p> <p>4. Attacking judicial proceedings collaterally— effect of mere error. A decree, however erroneous it may be, is binding upon the parties until vacated or reversed.</p> <p>5. Same—determination of a fact—conclusiveness—in a collateral pro- ' seeding. A judgment or decree which necessarily a