73 Ill. 462 | Ill. | 1874
delivered the opinion of the Court:
This was a hill in chancery, filed in the Superior Court of Cook county, April 30, 1869, by James Robey against James B. Morris and others, to set aside a sale made by the sheriff of Cook county, of certain lots in Chicago, and to cancel the sheriff’s deed therefor. The court below granted the relief sought, and the defendants appealed from the decree.
The sale was had under the following circumstances: On
August 31, 1866, Samuel Delamater commenced a suit in foreign attachment, in the Superior Court of Cook county, against Robey.
The attachment writ, by direction of the plaintiff, was levied on a certain part of lot 2, in block 24, in the School Section addition to Chicago, and lots 22, 23, 24, 25, 26, 27 and 28, in the Canal Trustees’ subdivision of the south-east quarter, section 7, etc. The default of Robey was taken in the attachment suit, and on the 20th of January, 1867, judgment against him by default was rendered in Delamater’s favor, for $168.85. On the 15th day of August, 1867, a special execution was issued for the sale of the property attached, and on the 6th of September, 1867, the sheriff sold, upon the execution, at public auction, the eight lots attached, en masse, to the appellant Morris, for the sum of $217.06. A certificate of sale was, on the same day, issued to Morris, under which he was entitled to a deed, if the property was not redeemed before December 6, 1868.
On the 28th of January, 1869, the property not having been redeemed, the sheriff executed a deed to Morris. At the time of the commencement of the attachment suit, and afterward, the proof shows Robey to have been a resident of London, in Canada; that for some years prior to that time, he had been in bad health, and, under the advice of his physician, was traveling a share of the time. In October, 1869, he departed this life, and Isabella Bobey, who was made executrix and sole devisee under his will, was substituted as complainant in this suit.
The average value of the whole property, the eight lots, at the time of the sale, according to the average of the estimates of the witnesses who testified upon the subject, with the exception of one whose testimony was so widely variant from that of all the others as not to entitle it to consideration, was upwards of $20,000; and any one of the lots was worth more than seven times the amount at which the whole were struck off to Morris, and one of them over thirty times the amount. This lot was a mile and a half distant from the others. The lots were all 25 feet front. There is nothing in the proof to indicate that there was any reason, from the condition or relative situation of the lots, why any one lot would not sell to as good advantage, and for as good a price, by itself, as in connection with the others, and without injury to the rest. There is no pretense of any defect of title in respect to any of the lots.
The only attempted explanation of the excessive levy under the writ of attachment was, that Delamater did not know but that Bobey might have previously disposed of some of the property. _ _ .
_ _ There was, in this case, such an enormous disproportion between the value of the property and the sum for which it was sold, as to shock the conscience. And although inadequacy of price on an execution sale may be no ground for equitable relief, without additional circumstances to justify it, we are of opinion that such additional circumstances do exist in the present case, and that they are to be found in the irregular mode of selling these eight separate lots in gross, without having first offered them in parcels of two and more, less than the wdiole.
In Day v. Graham, 1 Gilm. 435, several town lots and tracts of land, worth about $4000, were offered separately, and there being no bid, they were sold en masse for $50.62; the titles were reported defective. This court there say: We have no doubt but what the sale of the property en masse was illegal, and ought to be set aside. This case again appears in 4 Gilm. 392, where the court say, that in the former case “ the opinion was expressed that the sale was clearly irregular and ought to be set aside. We are entirely satisfied with the reasons there given for that conclusion.” In Stewart v. Cross, 5 Gilm. 442, the court say: Had there been any allegation that the land Avas Avorth $1000 at the time of the sale, instead of at the time of filing the bill, such allegation, in connection Avitli the other statements in the bill, Avould haA-e presented a clear case for the interposition of a court of equity; for it Avould never be alloived for an officer to sell en masse a tract of land Avorth $1000, to satisfy an execution of less than $30, when the tract Avas susceptible of division and the sale of a small part Avould have satisfied the debt; and see Cowen v. Underwood, 16 Ill. 22. In Balance v. Looinis, 22 Ill. 82, a lot and piece of land, Avorth in the aggregate $5000, Avere offered by the sheriff first in separate parcels; there being no bid they Avere sold in gross for $226.79. Although there seemed to be some question about the title to the lot, and some incumbrance upon the land, the court held it a clear case for relief, and set aside the sale; and see Jackson v. Newton, 18 Johns. 362; 1 Johns. Ch. 505, Wood v. Morrell; Howell v. Baker, 4 id. 117; Tiernan v. Wilson, 6 id. 410; Williams v. Allison, 33 Iowa, 286. In Phelps v. Conover, 25 Ill. 312, the rule Avas laid down, that where several adjoining tracts of land were leAded upon, it would be the duty of the officer to offer each tract separately, and if one separate division did not sell, to add another to it, and so on, until all the subdivisions were offered, Avhen not selling, it would be but just to the creditor to sell the Avhole on a reasonable bid en masse, the officer making a full return of all the facts; the decision acknowledging the creditor’s right to insist upon a sale. And it Avas there further said, while, on the one hand, the plaintiff in execution has the right to demand a sale, so, on the other, the debtor has a right to insist that it shall be so conducted that he shall not be needlessly and irre parably injured.
There was the testimony of one witness, and only one, that of the attorney of Delamater, going to show a compliance by the sheriff with his duty, as declared in the case last cited, by offering for sale first the lots separately, and there being no bid, that he" then offered two lots together, and so on, an additional lot at each offer, until he had embraced all the lots levied on, and there being no bid, he finally offered all the property together. But the testimony of Delamater, Morris, and Bradley, the deputy sheriff who made the sale, was that the lots were offered separately, and there being no bid, they were then offered together and sold. The statement in the certificate of sale given by the deputy sheriff to Morris on the purchase was, that he sold all the lots to Morris for the sum of $217.06, “ said lots having first been offered separately, without any bid or bids therefor, or either of them, or any part thereof.”
We regard the preponderance of the testimony to be, that the only offer of the lots for sale was separately, and then in gross; that there was no offer of any two, or more, less than the whole, together.
This was not following the course prescribed in Phelps v. Conover, supra, and, as there declared, there was in this respect an omission of duty on the part of the sheriff, which, in conjunction with the gross inadecpiacy of price, in our opinion, constitutes ground sufficient for the setting aside of the sale. Had the course above indicated been pursued, and two or more of the lots less than the whole been offered for sale together, there might have been a bid therefor and sale, and thus a' portion of this immense sacrifice of the debtor’s property have been avoided; or, at least, it might have resulted in making sale of the property in portions, instead of all together.
It is a material thing as respects the debtor’s benefit, to have his property thus sold in portions, as it affords him the opportunity to redeem and save a part, without being compelled to redeem the whole, or none.
Before resorting to the extremity of the exposure of the debtor’s property to such a ruinous sacrifice, by selling in gross 80 large a number of separate pieces of property, each one of which was many times more in value than the amount of the debt, the necessity of so doing, in order to make any sale, should have been demonstrated by the officer having first exhausted all the other means which it was 1ns duty to use, as has been laid down by this court, to make sale of some less number of the lots than the whole. Before this having been done, such a sale, under the circumstances here, may well be adjudged unnecessary, oppressive, unjust and illegal.
The mode of sale here, then, was not regular,^nd accepting the decision in Phelps v. Conover as the rule in such case, there was an advantage taken against the debtor not warranted by law; there was the omission of a duty or requirement of the law; which circumstances, with gross inadequacy of price, are at least impliedly recognized as grounds of equitable relief in a number of cases, as in McMullen v. Gable, 47 Ill. 71, and Mixer v. Sibley, 53 id. 75.
The point is made, by appellants, that the court upon whose judgment the execution issued, had full power to set aside the execution sale, and so the remedy was full and complete at law.
But in Day v. Graham, supra, it was expressly held, that where a third person becomes a purchaser, the proper remedy was not on motion in a court of law, but in equity. It is then said, there should have been a motion to set aside the excessive levy under the writ of attachment. But the excessive levy did the debtor no harm, and it was no necessary result that all the property levied upon would be sold. He had no reason to apprehend that any more of it would be sold than would be reasonably required to satisfy the claim of $168, and much less that there would ■ be an abuse of the process of the court in making an illegal or oppressive sale of his property.
The point is much relied upon, that Morris was a bona fide purchaser, and to be protected as such; and that therein lies a difference between the present and some of the cases cited, -¡where the plaintiff in execution, or his attorney, was the purchaser, and thus affected with notice of all irregularities in the proceedings.
But we fail to see the distinction, as applied to this case. Morris iras cognizant of, and a participant in the wrongful mode of the sale of the property. He must be chargeable with notice of the value of the property and of its situation, and of the legal rules bearing upon the transaction. We do not perceive, so far as respects this point of objection, the wrongful mode of the sale, that he stands in any better position than the plaintiff .in execution would have done, had he been the purchaser.
But it is insisted that Bobey neglected to avail himself of the redemption to which he was entitled, and that relief should be refused upon the ground of laches.
In Fergus v. Woodworth, 44 Ill. 374, it ivas held that if no application is made to set aside the sale before the redemption expires, the court will require it to be shown that real injustice has been done, or the party may be called upon to show a reasonable excuse for his delay to make an earlier application.
But the court there say: If, however, the sale of property in gross produces a great wrong, a court of equity might entertain jurisdiction two or three years after the sale, and afford relief, if the purchaser had not parted with his title, upon a reasonable excuse being shown for the delay. There is evidence that Bobey knew of the commencement of the attachment suit and the rendition of the judgment; but Ave fail to find any proof that he had any knowledge of the sale, or what of his property had been attached. Knowing of the existence of the attachment suit, he might expect that there Avould be an appropriation of such an amount of his property as would be reasonably required for the satisfaction of the plaintiff’s claim, but he could have had no reason to suppose that under the guise of collecting a debt of $168, the process of a court of justice was going to be peiwerted to the despoliation of his entire estate, of such a magnitude.
In view of all the circumstances, the proceeding being by foreign attachment, the debtor a resident of another State, and the bill having been filed within less than six months after the time of redemption expired, we can not say there has been such laches in the case, as should bar the claim for relief.
We fully appreciate the importance, urged upon our attention, of upholding judicial sales and protecting innocent purchasers thereat, and believe the decision here entirely consists therewith. When at such sale there is the immense and needless sacrifice of a debtor’s property disclosed in the present case, the buyer has no reason to suppose that his purchase will receive judicial approval, where there has been, in his own knowledge, in the mode of the sale, a violation of a material safeguard of the law to protect the debtor against oppression and despoilment of his property by the abuse of the process of the court.
The court below set aside the sale upon the terms of the payment of the amount bid upon the sale, and taxes paid by the purchaser, Morris, with interest from the time of payment.
A majority of the court deem the decree a proper one, and it is accordingly affirmed.
Decree affirmed.
