42 Ill. App. 356 | Ill. App. Ct. | 1892
Two grounds of error are assigned in this court. The first is, that the court below erred in entering the decree at February term, 1891, being done after the decisions in this and the Supreme Court on a former appeal, and that the court below also erred in overruling appellant’s motion to set aside the sale by the sheriff, of the lands deeded to appellant by his father under execution on the Martin judgment against Peter Bressler, the appellant’s grantor, made after its revival by order of the Circuit Court which was affirmed by this and the Supreme Court. The appellee can not avail himself of the first error assigned, even if an error, for the reason that no appeal was taken from the said order of the court. The appeal in this case was taken from the order of the court made at the May term, 1891, overruling the motion to set aside the sale under the above noted execution. This appeal does not bring up the order made at a former term of the court. We therefore dismiss that question without decision, as not being before us.
On the other assignment of error several reasons are urged for reversal, none of them, however, we think valid. It is insisted that the decree of the Circuit Court setting aside the sale and satisfaction of the Martin judgment was rendered inoperative, for the alleged reason that this court when the case was here before, reversed it so far as the land in question was concerned, and that the present levy and sale is therefore void. This is an entire misapprehension as to what was decided by this court. Smith had made a motion to release the Dinsmoor land which was granted by the court, and that was all that was intended; but even if the orders of this court as recorded were broad enough to cover the lands in question, it would not affect the judgment lien of appellee, which attached under the statute as soon as the satisfaction was set aside, and the judgment thereby revived.
The order of the court below in that case was that “ the satisfaction on the Martin judgment be vacated, and that Martin have execution on said judgment, and that the judgment be a lien upon the lands and premises first above described.” If this last clause was stricken out, the order setting aside the satisfaction, and ordering an execution to issue would remain, and would have as much force and effect as if the ordpr contained the declaration of a lien. Such a declaration was not required and was superfluous. The statute creates a judgment lien and no order of the court is required. After the case was appealed from this to the Supreme Court, that court considered the evidence touching the lien of the judgment of appellee as against the appellant, and held that its revival made it a lien as against appellant, and that he must be held to notice of the existence of the judgment, using this language : “ He (appellant) purchased pending the litigation between Dinsmoor and Martin and is chargeable with notice that if Dinsmoor prevailed therein, Martin would be entitled to have his lien revived. He occupies no better position in this controversy than does his father, Peter Bressler.”
This, then, settles the rights of the parties herein as to the - lien of appellee’s judgment as against appellant and no more need be said on that subject. The cross-bill of Martin "was germane and gave the court jurisdiction of all matters that were passed on in that suit, and the decree thereunder is binding on the parties to- the suit, or the cross-bill, and a point like that can not be raised here for the first time. It is objected that the land in question was sold en masse and that under the statute this was illegal. We do not understand the law forbids the lands to be sold en masse, if, upon its being offered in separate tracts or lots, it fails to sell; or if it will not bring as much in that way as if offered en masse, and enough has not been realized or would be realized, if bid off in separate lots or tracts, to satisfy the judgment, and there are no special equities against the sale being allowed to stand. The statute provides that “ When real or personal property is taken in execution, if the same is susceptible of division, it shall be sold in separate tracts, lots or articles, and only so much shall be sold as necessary to satisfy the execution and costs.” The object in requiring lands to be sold in this way was to save to the judgment debtor a portion of his land if “ tracts or lots ” of it would satisfy the judgment, and if his land would bring as much" sold in this way, to enable him to redeem certain tracts of it without being compelled to redeem the whole. But to absolutely require his land to be sold in separate tracts or lots, when if sold en ■masse it would bring more, and satisfy more of the judgment against him which would be unsatisfied without the higher bid, would be to require the plaintiff in the execution in many cases to desist in making his debt when the defendant had sufficient property to satisfy it, if sold en masse.
We do not think the statute was intended to thus operate. The lands in this case were put up first in forty acre tracts, and then in eighty acre parcels and the bids reserved, and then put up en masse, and then a higher bid was received for it than the aggregate of the separate bids, and enough to satisfy appellee’s judgment and costs, while without so selling, it would not have been sufficient. This was proper. Van Valkenburg v. Trustees, 66 Ill. 103; Phelps v. Conover, 25 Ill. 309. The statute has been changed in its wording somewhat but we think not in substance.
The Supreme Court recognizes no different rule under the wording of the new statute than under the old. Smith v. Huntoon, 134 Ill. 24. No inadequacy of price is shown in this case, nor any equities existing in favor of appellant that would compel the setting aside of the sale. Seeing no error in the record the order of the court below in overruling appellant’s motion to set aside the sale is affirmed.
Order affirmed.