20 Ill. 155 | Ill. | 1858
This is an application for a peremptory mandamus, against the appellant, sheriff of Warren county, to compel him to make a deed to Paine, the relator, for a certain tract of land described in his petition, which he alleges he purchased under an execution, and which has not been redeemed as prescribed by law.
The facts are not disputed, and are substantially these: At the April term, 1851, of the Warren Circuit Court, a decree was rendered in a proceeding under the statute, to enforce a mechanics’ lien in favor of Jesse Spencer and against Jeremiah Baily, ordering and adjudging that Baily pay to Spencer one hundred and thirty-five dollars and costs of suit, within six months from the entry of the decree, and, in default thereof, the south-east quarter of section nine, in township eleven north, in range two west, in said county, be sold by the sheriff of the county, upon delivery to him of a certified copy of the decree. Baily made default, and a certified copy of the decree was thereupon delivered to the sheriff, who sold the land, under it, on the 23rd day of October, 1852, after notice as required by the decree, to Spencer, for the sum of one hundred and sixty dollars and forty-three cents, and gave him a certificate of purchase, which he assigned to George F. Harding.
At the September term, 1852, of the Circuit Court—of what county is not stated in the petition—a judgment was rendered in favor of one Bartholomew, against the same Jeremiah Baily, for $640 ^¡yij and costs, on which execution was issued and returned within the year—what the return was, does not appear— a second execution was issued on the 7th October, 1853, and delivered to appellant, the sheriff, which he levied on the same land above described, and on the same day Bartholomew paid the sheriff $183 T0*ff for Jesse Spencer and assigns, for the purpose of redeeming the land from the sale to him under the decree, which he claimed the right to do, as a judgment creditor, and the sheriff on the saíne day filed in the clerk’s office a certificate of redemption “ thereof as aforesaid,” and, having duly-advertised the land, sold it, on the 1st December, 1853, to E. A. Paine, the relator, for nine hundred dollars, and delivered him a certificate of purchase, to the effect that he would be entitled to a deed for the land, unless redeemed on the 1st February, 1854.
No attempt was made by any other person to redeem the land from this sale to Spencer under the decree, and none to redeem from the relator, and on the 15th June, 1854, he presented to the appellant, still being sheriff, his certificate of purchase, tendered and paid the fees, and demanded a deed, which the appellant refused to execute. Resort is had to this proceeding to compel him to make the deed in accordance with the certificate of purchase ; and the question which arises is, what was the character of the sale under the decree in the proceeding to enforce the mechanics’ lien,—the solution of which disposes of all the other points made in the case.
A reference to the language of the decree will determine this, and that is as follows, so far as this point is concerned : “ And in default of payment within six months, the premises (describing the land,) be levied upon and sold, upon delivery, to the sheriff of said county, of a certified copy of said order and decree.”
It is contended by the relator, that, inasmuch as the sale was not, under the decree, to be made by the master in chancery of the county, or by a commissioner, but by the sheriff, who was required to levy and sell, and did levy and sell, and give a certificate of sale to the purchaser, such sale is, in effect,' a sale under execution, or a final process having the effect of an execution.
An execution, or, as it is called in legal parlance, a fieri facias, is the ordinary final process on judgments at law, the form and office of which is well known and understood. It will be perceived that the decree awards no execution nor final process of any kind. The decree is, that the land be sold, upon delivery to the sheriff “ of a certified copy of said order and decree.” A copy of the decree only being delivered to the sheriff, it cannot, in any proper understanding of the terms, be regarded as “ an execution or other final process,” so as to bring it within the 46th'section of the chancery act, chap. 21. That section declares, “when there shall be no master in chancery or commissioner to execute a decree, the same may be carried into effect by execution or other final process, according to the nature of the case, directed to the sheriff or other officer of the proper county, which, when issued, shall be executed and returned by the sheriff or other officer to whom it may be directed, and shall have the same operation and force as similar writs issued upon a judgment at law.
“ Other final process” must be understood such final process as is the practice of a court of chancery to issue, which are ordinarily, besides executions, writs of attachment, of sequestration, and writs of assistance, all which must run in the name of “ The People of the State of Illinois.” Sec. 26, art. 5, State Const.
All this the court may do, but at the same time, it is not prohibited from the use of other. appropriate means to execute its decrees, and it was competent for the court to clothe the sheriff, as a convenient instrument, with authority to sell, without spreading its reasons for so doing upon the record. Farnsworth v. Strassler, 12 Ill. R. 482.
He is directed by the decree to execute the decree by a sale of the land, upon delivery to him of a certified copy of the decree, thereby making him, pro hoec vice, a commissioner for such purpose only. His levying upon the land, and giving a certificate to the purchasers, are his own acts, not warranted by the decree ; that instructed him to sell the land. Having done this, he was bound to make a deed to the purchaser, no redemption being allowed in such cases where none is provided for in the decree. West and others v. Fleming, 18 Ill. R. 248.
It is unnecessary to consider other questions raised on the argument, as they are all subordinate, and merge in the one decided. It may be well to say, however, that on the relator’s own showing, his attempted redemption of the land from the 'decretal sale is a nullity, even if such sale was by execution, and the property subject to redemption. A judgment creditor cannot redeem until after the expiration of twelve months—not within that time. It is a statutory privilege, and must be exercised in conformity to the statute. R. S. 1845, 302.
The judgment is reversed.
Judgment reversed.
