Hobson v. McCambridge
22 N.E. 823
Ill.
1889
Check Treatment
Mr. Chief Justice Shope

delivered the opinion of the Court:

The bill in this case sought to set aside the sheriff’s sale and deed of the eighty-acre tract of land in question, and the circuit court rendered its decree in accordance with the prayer of the bill. It is insisted there was no authority of law for filing the transсript of the judgment of the justice of the peace in the office of the- clerk of the circuit court, and therefore no execution could properly be issued thereon by the clerk of said court. The suit was originally brought before the justice of the peace, in favor of Battles, for the use of Hobson, against the two McCambridges, but the justice rendered judgment against the defendants, in favor of William H. Hobson. It will be unnecessary to question the sufficiency of the entries by the justice in other respects, to constitute a valid judgment. It was clearly irregular and erroneous to render judgment in favor of the beneficial plaintiff, alone. The entry of the judgment in favor of Hobson necessarily operated as a discontinuance of the suit as to Battles, the nominal plaintiff, and he must be regarded as not a party to the further proceedings. The judgment must be treated as a judgment in favor of Hob-son, alone.

By section 95, chapter 79, of the Revised Statutes, it is provided : “When it shall аppear by the return of an execution first issued, as aforesaid, (by the justice of the peace,) that the defendant has not personal property sufficient to satisfy the judgment and costs, within the district in which judgment was rendered, and it is desired by the plaintiff to have the same levied on real ‍​‌​​​‌​‌​‌​‌​​​​‌​​​‌‌​​​‌‌​​​‌​‌‌‌‌‌​​​‌​‌​‌‌‌‌‍property in that or any other district, it shall be lawful for the justice to certify to the clerk of the circuit court of the county in which such judgment was rendered, a transcript, which shall be filed by said clerk, and the judgmеnt shall thenceforward have all the effect of a judgment of the said court, and execution shall issue thereon out of that court, as in other cases.”

The issue of an execution, and its return by the proper officer, is made, by the statute, a condition precedent to the power of the justice to certify such transcript to the circuit clerk. Unles's the transcript shows, on its face, that this section of the statute has been substantially complied with, the clerk of the circuit cоurt is invested with no authority, by law, to issue an execution. In 1 Freeman on Executions, (2d ed.) sec. 14, that author says: “When the county clerk issues execution to enforce the judgment of a justice of the peace, his authority to do so rests upon the filing of the transcript, and upon the existence of such other facts as the statute has prescribed. Unless it can be shown that the law was substantially complied with, the act of the clerk is regarded as without authority, and therefore as void, ”—citing Carr v. Yоuse, 39 Mo. 346, Ruby v. Hann, id. 480, Linderman v. Edson, 25 id. 105, and other eases. The author proceeds: “So there are statutes authorizing transcripts of judgments to be sent to other counties, sometimes for the purpose of making such judgments liens in the counties to which the transcripts are sent, ‍​‌​​​‌​‌​‌​‌​​​​‌​​​‌‌​​​‌‌​​​‌​‌‌‌‌‌​​​‌​‌​‌‌‌‌‍and sometimes to authorize the issue of execution in such county. Where the latter is the object, the authority to issue execution depends on compliance with the provisions of the statute, and if issued in the absence of such compliance, the execution is void,”—citing Colville v. Neal, 2 Swan, 89, Morgan v. Hannah, 11 Humph. 122, and Eason v. Cummins, id. 210. In the same section this author further says: “When authority is given to the clerk of a circuit court to issue execution to any other county in which the judgment has been docketed, the docketing of the judgment in such other county has been held by the Supreme Court of Wisconsin to be a prerequisite to the issue of the writ to said county. It is even said that the fact of such docketing must be recited in the writ, on the ground that the writ must, on its face, disclose the authority for issuing it, and that failing to state such docketing, it discloses no authority whatsoever.”

Without further reference to authority, we think it clear that an execution must have been issued by the justice upon the judgment rendered by him, and duly returned nullа bona by the proper officer, before a valid transcript could be made and filed under this statute, and that without such issue and return the transcript and the proceedings thereunder were nullities. The transcript in this ease fails to show the issue and return of an execution upon the judgment of the justice of the peace. ‍​‌​​​‌​‌​‌​‌​​​​‌​​​‌‌​​​‌‌​​​‌​‌‌‌‌‌​​​‌​‌​‌‌‌‌‍It is true, the issue and return of an execution are shown, but it was not in favor of the proper plaintiff. It was in favor of Battles, while the judgment is in favor of Hobson, alone. The fact that he was named as beneficial plaintiff, or the words, “for the use of Dr. W. H. Hobson,” does not constitute him the plaintiff in the execution. These words are unnecessary for any purpose, other than to protect the interest of the usee against the nominal plaintiff. In McCormick v. Fulton, 19 Ill. 570, we said: “As the note was not assigned, the beneficial plaintiff had no right to sue in his own name. It was only by the use of the name of the payee of the note that he could sue, and there is no provision of lаw that authorizes his name to be dropped in this proceeding. He was a necessary party in every stage of the proceeding. Courts of law can only recognize him as the plaintiff, although in modern practice, as a matter of сonvenience, they will declare and protect the trust. The beneficial plaintiff is not authorized to appeal in his own name, and every step taken must be in that of the nominal plaintiff.” And this is, as we understand, the uniform doctrine. The author from whom we have before quoted, in his work on Executions (see. 42,) says : “In this part of the execution the same precision must be attained as is necessary in the entry of a judgment. It should show for and against whom the execution issues, the amount or amounts to be taken from the latter for the benefit of the former, and also the date at which, and the court wherein, the judgment was rendered. No execution can be proper in form, unless, with reference to these particulars, it exactly pursues the judgment.” The execution must follow the judgment in every essential particular. See Bradford v. Water Lock Co. 58 Ga. 280; Knight v. Applegate, 3 Mon. 376; Hastings v. Johnson, 1 Nev. 377; Farnham v. Hildreth, 32 Barb. 277; Cole v. Heinson, 6 T. R. 234; Palmer v. Palmer, 2 Conn. 462; Walker v. Mcurshall, 7 Ired. L. 1.

It is, however, in the view we take of this case, unnecessary to hold that the execution issued by the clerk was void. To say the least, it was a gravе and serious irregularity to issue execution, either by the justice or clerk, in favor of Battles, upon a judgment in favor of Hobson, and afforded ground for setting the same aside, upon motion or by bill in chancery; and.especially is this the case wherе, as here, there was gross inadequacy of price, and where the officer executing the process failed to call upon the defendants and demand payment, or in any manner to serve his execution. In addition to this, the evidence leaves but little doubt, if any, of the ability of the constable to have made the amount of the execution by a levy upon personal property. It is true, the constable testifies that he notified the defendants of the execution, and demanded property; but this is denied. Mrs.-McCambridge had personal property, which, she not being the head of the family, was not exempt from execution, sufficient to satisfy such' demand. Without making ‍​‌​​​‌​‌​‌​‌​​​​‌​​​‌‌​​​‌‌​​​‌​‌‌‌‌‌​​​‌​‌​‌‌‌‌‍an effort to find property, the constable made return of Ms execution withm four days after it came to Ms hands. Why this was done does not appear, but immediately following, the transcript was filed in the office of the clerk of the circuit court, and on the 16th of June, 1885, execution was issued on the transcript, and thе land sold on the 25th of July following. The land was first offered in forty-acre tracts, and there being no bids; the land was then sold en masse. It is shown that the land was susceptible of division. It is equally clear, from a preponderance of the evidence, that the sheriff did not serve the execution held by him, or give notice of it to the defendants, and it is not pretended that any notice was even sent to the defendant upon whose property the execution was levied. These facts might well warrant the сourt in finding that there had been an attempt, on the part of Hobson, to obtain, not simply the payment of Ms debt, but an unfair advantage, and securing a tract of land shown to be worth over $2000, for the sum of $83.65.

It is, however, said, that tMs tract of land was mcumbered tо the extent of $750, and hence Hobson .could not safely purchase one forty acres thereof, although amply sufficient to satisfy his debt. We fail to see any real ground for fearing that this mortgage would attach to the forty that he might purchasе, to the exclusion of the other forty. The exact reverse would have been the result. In case of the foreclosure of the mortgage the assets would have been marshaled, and the unsold part first made liable for the mortgage debt. But if this wаs not so, he might have levied upon the smaller tract of thirty-two and one-half acres, which was umncumbered, and belonged to the defendant Mrs. McCambridge. The land sold was worth from $30 to $40 per acre, or, at the lowest put by any of the witnesses, $2400. The incumbrаnce was $750, leaving the net value $1650, while the sale was for $83.65.

It is undoubtedly the rule, that when the debtor has the right of redemption, inadequacy of price alone will ‍​‌​​​‌​‌​‌​‌​​​​‌​​​‌‌​​​‌‌​​​‌​‌‌‌‌‌​​​‌​‌​‌‌‌‌‍not justify the vacation of a sale on execution, or settmg aside a judicial sale. Gibbons v. Bressler, 61 Ill. 110; Watt v. McGilliard, 67 id. 513; Allen v. Shepard, 87 id. 214; Davis, Cory & Co. v. Chicago Dock Co. 129 id. 180. Where the inadequacy is gross, the purchaser can retain his advantage only by showing that he acquired title by proceedings free from fault or irregularity. If, says Mr. Freeman, the inadequacy can.be connected with or shown to result from any mistake, accident, surprise, misconduct, fraud or irregularity, the sale will generally be vacated, “unless • the complainant was himself in fault, or the rights of innocent third parties have become dependent on the sale.” While inadequacy alone may not, upon the grounds of public policy, be sufficient, of itself, to set aside a sale on execution, or a judicial sale, yet where there are circumstances оf irregularity or of fraud, or that show that unfair advantage was sought by the purchaser or the person benefited by the sale, the inadequacy of price may be always taken into consideration, and may become conclusive evidence of fraud. Freeman on Executions, sec. 309; Morris v. Robey, 73 Ill. 462; Davis, Cory & Co. v. Chicago Dock Co. supra, and authorities cited.

In this case there is a palpable, gross inadequacy in price, and that there are serious errors and irregularities in the proceedings can not be questioned. Under the facts in thе ease it can hardly be presumed that the constable returned the execution so hastily, and without any effort to obtain its satisfaction, without the direction of Hobson. Promptly upon the return of the execution the justice’s transcript was filed, and an execution issued from the circuit court, and the levy is made upon land of much greater value than was necessary, without any notice to the McCambridges. The land is sold within the lifetime of the execution issued by the justice, and, as we have seеn, not only the levy may be said to be excessive, but a much greater portion of the land was sold than was necessary to satisfy the debt. It seems improbable that Mrs. McCambridge would have permitted redemption to expire, under the circumstanсes here shown, if she had notice of its sale. It was the duty of the officer holding the execution to notify the defendant thereof before proceeding to levy the same, when that was practicable. Taking all these circumstances intо consideration, the gross inadequacy of the price at which the land was sold becomes, we think, strong evidence that the purchaser sought and obtained undue advantage, and the inference of fraud on his part, or a fraudulent purpоse in manipulating these proceedings for the purpose of gaining such advantage, becomes irresistible.

The court below set aside the sale and deed on equitable terms, giving Hobson the amount of his judgment, with interest thereon, and his costs. We are of opinion that he has no just cause of complaint, and the decree of the circuit court will be affirmed.

Decree affirmed.