| Ill. | Jan 15, 1867
delivered the opinion of the Court:
Neely, the appellee, was the purchaser of certain real estate under a decree foreclosing a mortgage executed by one English. Bonnell, the appellant, obtained a judgment against English subsequent to the mortgage. An execution was issued on the judgment, and levied on the mortgaged premises, on the 4th of March, 1864, and on the 14th of May, 1864, they were sold to Bonnell. This sale was set aside at the April Term, 1866, as irregular, and a vend. exp. was issued directing the sheriff to sell the lands hitherto levied upon. Under the venditioni the sheriff proceeded to sell, on the 2d day of June, 1866. Bonnell was the purchaser, and the sheriff treated the amount of his bid as a redemption from the sale to Neely, under the foreclosure, made April 29,1865, and gave him a certificate of redemption. The sheriff offered Bonnell a deed, which he declined, and directed the sheriff to resell. This the sheriff was about to do, when Neely applied to the circuit judge in vacation for an order staying further proceedings on the part of the sheriff.
However irregular these proceedings may have been, and they were certainly a departure from the statute prescribing the mode in which judgment creditors shall redeem, the appellee has mistaken his remedy. This proceeding was instituted under section forty-six of the practice act authorizing a “party” to apply to a judge in vacation, for an order staying proceedings as preliminary to a motion to be made in term time to quash the writ or other proceedings. This clearly refers to a party to the “ execution, replevin bond or other proceedings,” which it is sought to quash. The statute can never have been intended to authorize third persons to assert adverse rights by the summary means of a motion and have them adjusted without the aid of regular pleadings. If this proceeding can be sustained, then we should be obliged to hold that the claimant of personal property which has been levied on under an execution to which he is not a party, may have his title tried by means of a motion instead of being driven to an action of replevin or a trial before a jury of the right of property. We cannot hold this. When process is abused, as, for example, if the execution has been paid to the sheriff, and he still proceeds to sell, it is very proper that as between the parties this summary remedy should be allowed. But that strangers should be allowed to have adverse and often complex rights settled in this mode is inconsistent with the spirit of our law. The judgment of the Circuit Court must be reversed and the petition or motion of Neely dismissed without prejudice to him in any future proceedings.
Judgment reversed.