7 Ill. App. 152 | Ill. App. Ct. | 1880
Appellee, under an order of the County Court of Sangamon county, obtained by him to sell land to pay debts, offered the land at public sale, and appellant hid the sum of $4,212. Iiis hid being the highest, the land was struck off to him at that price, and the sale, on report to the court, was confirmed. Appellee then tendered to appellant a deed of the premises so sold, and demanded of him payment and security for payment agreeably to the terms of the sale. Appellant refused to accept the deed and complete his purchase, or to have anything further to do with the matter. A few weeks thereafter appellee, without further action of the court, advertised the land again for sale, and under the same order of the court, re-sold the land to another purchaser for $2,835, which sale was also reported to the court and confirmed. This action of assumpsit was then brought by appellee, and on -the trial below the court rendered a judgment against appellant for $1,395 damages and costs. This judgment cannot be sustained. In Hill et al. v. Hill, 58 Ill. 240, it was held, that in order to charge a purchaser under a decree in chancery, who refuses to complete his purchase, with any deficiency arising on a resale, the master should report the sale and refusal to the court, and after confirmation of the report, a notice of motion should he served on the purchaser, that he may be ordered to pay in his purchase money within a given time, or in default thereof, that the estate purchased by him would be re-sold at his risk. And the order of re-sale on failure to pay the purchase money, or show canse therefor, should direct the property to be re-sold at the bidder’s risk and expense.
Hone of these necessary preliminary steps were taken in this case, but the administrator, after the confirmation of his report of the first sale, and after a refusal of the purchaser to complete his purchase, and without an order of the court for a re sale at the bidder’s risk and expense, re-sold the property for a less price, and then brought this action to recover the difference between the two sales. In the case cited, it was held fatal to the claim, that the purchaser previous to making the order of re-sale, had never been called upon by the court to complete his purchase, and allowed an opportunity to show cause for not doing so.
It is claimed that the rule laid down in the above case does not apply to this case, because the county court does not possess jurisdiction to proceed in such a summary manner, or if it has such jurisdiction that the remedy at law would co-exist with the summary equity remedy. Chapter 3 of Revised Statutes of 1874, under the head of Administration of Estates, confers jurisdiction on the county court to grant decrees for the sale of land to pay debts on petition of the executor or administrator of the estate, and section 101 provides that the practice in such cases shall he the same as in cases in chancery.
We think the county court in such eases, under this law, possesses the jurisdiction and power to proceed in the same summary manner as the circuit court proceeds in cases of sales of land under decrees in chancery, and unless the same necessary preliminary steps are taken in eases of refusal of a purchaser to complete his purchase at an executor’s or administrator’s sale, no recovery can be had of the purchaser tor a loss on a re-sale. Before any liability attaches the purchaser must he called upon by the court to complete his purchase, and allowed an opportunity to show cause for not doing so. This is the chancery practice adopted in this state, and the law declares that the same practice must govern in' cases arising in the county court.
Judgment reversed.
