16 Ill. 141 | Ill. | 1854
Plaintiff purchased two tracts of land at a commissioner’s sale under a decree made in a case of petition for partition, paid one-fourth of the purchase money and executed his notes with surety, received a conveyance, and executed a mortgage to secure the balance due on the notes.
The petitioner gave notice of a motion to set aside this sale, and at the next term entered his motion and filed the affidavit of his guardian, showing and charging that the lands were sold at an under value, on account of the fraudulent conduct and contrivance of plaintiff. Under the direction of the court, proofs were taken and reported by the master, and upon the hearing, the sale to plaintiff was vacated and set aside, and premises ordered to be sold.
The case comes by appeal from this decree.
The only question of any impor canee in the case is, whether there is such unfairness and fraud in the sale as to warrant the decree setting it aside. Of this we have no doubt.
The plaintiff, with his brothers and sisters, had, or pretended to have, a claim of title to one of these tracts adverse to petitioners. Under these circumstances, if he desired to become a bidder, it was essential to fairness towards petitioner that he should conceal or forbear to assert his adverse claim, whatever consequence might result therefrom to his interest. It is not competent for him to assert his claim to the premises by a public announcement at the biddings, with a threat to litigate it with any purchaser, and then enter into competition in the biddings, and purchase at an under value occasioned by the depreciation his own conduct had produced. If it were essential for the protection of his claim to give notice and make it known at the sale, he thereby disqualified himself to bid or become a purchaser of this adverse title at such sale. He shall not be allowed to depreciate or destroy the value of the land by denying the title, then buy it at a depreciation thus produced, and claim to be a fair purchaser. Such is proven to have been his conduct in this case. A witness desired to purchase the tract claimed, and would have paid more for it than plaintiff gave, had not this claim been made. So he would for the other to which no claim was made, if he could have purchased with it the piece claimed. Its value depended in part upon its connection with that piece.
Another witness, though ho had no money to bid, yet desired the land, and actually purchased the same of plaintiff before he bid on it,'at an advance of some five hundred dollars, on time.
These facts show such fraud upon, and injury to, the rights and interests of defendant as call for correction from the court, in the exercise of a sound legal discretion of its power of disapproving and setting aside sales under its orders; and we think that discretion properly exercised in this case.
The objection taken to the proceedings by motion, is not sustainable.
The case is essentially different from the case of Day v. Graham, 1 Gilm. 435. Courts of law have a supervision over the execution of their process, and yet may not, as in that case, properly afford relief by setting aside sales made under it, but leave the party to his bill in equity.
Courts of equity have a like general supervision over their process, and more especially over the particular sales ordered by their decrees and made by their special agents or commissioners. So far is this carried under the English practise, that the sale, until confirmation by the chancellor, is treated merely as a bid, and subject to a proposition of an advance. 6 Vessey, 513 ; 8 Ibid. 214.
We have not adopted the rule to this extent, (15 Ill. 447), but the power, right and duty of the court to supervise, protect and preserve the parties from all fraud, unfairness and imposition, is of universal application here. Ayers v. Baumgarten, 15 Ill. 447; 2 Paige, 99, 339 ; 3 ibid. 97 ; 9 ibid. 259; 1 Edw. Chan. 577; 5 Humph. 355 ; 4 ibid. 372; 2 B. Monroe, 497 ; 3 Dana, 620; 1 Smede and Marsh. Chan. 522 ; 23 Miss. 445. And this is well put in Casamajor v. Strode, 1 Sim. and Stu. 381 (1 Eng. C. 382), upon the ground that the purchaser does, by the act of purchase under a decree, submit himself to the jurisdiction of the court as to all matters connected with that character. This is sometimes done by bill, as in Bacon et al. v. Conn, 1 Smede and Marsh. Chan. 348; by petition, as in Henderson v. Herrodetal, 23 Miss. 451; 2 Paige, 100; 9 ibid. 260; 3 ibid. 94 ; 15 Ill. 144; and sometimes by motion, 3 Dana, 615; 2 B. Monroe, 408; 5 Humph. 355; 2 Paige, 240 ; 1 Edw. Chan. 578; 4 ibid. 703.
The case before us is a proper one for a motion. The sale by plaintiff to the witness Reynolds, before the bidding, does not present the case of an innocent purchaser who is entitled to be. made a party by bill or petition, but it is a part of the evidence of the fraudulent conduct of plaintiff in forestalling competition.
Decree affirmed. Decree affirmed.
