38 N.E.2d 712 | Ill. | 1941
Lead Opinion
The master in chancery of Livingston county sold at a partition sale 372 acres of farm land and some city property which belonged to the heirs of Thomas Ryerson, deceased. The sale was held in accordance with the decree therefor and all statutory requirements were observed. No objection was raised as to city property and the sale of it was confirmed. The confirmation of the sale of the farm lands, however, was objected to and, on hearing, disapproved. The highest bidders at that sale have appealed from the decree of the circuit court which disapproved the sale of the farm lands and ordered a resale.
These bidders are tenants in common with the other parties to the suit, and the sale was made to them collectively. Theirs was the only bid. The farm lands were appraised at $29,160, or $78.38 per acre. They were sold to appellants for $19,500, or an average of $52.45 per acre. This was $60 more than the two-thirds of the appraised value required by statute. (Ill. Rev. Stat. 1939, chap. 106, par. 27.) On the hearing of objections to the master's report of sale Gilman Carlson, a party to the proceeding, offered as a bid on resale $24,180 for the 372 acres, or $65 per acre, an advance of slightly over twenty-four per cent. This bid was guaranteed by his father, John Carlson.
At the hearing on the objections, John Carlson testified a rumor was circulated at the sale that the appellants were going to run up the bid to $100 an acre. Gilman Carlson testified to the same effect and also that there was a rumor that there was a defect in title to the farm land. The master testified that the sale was held on a favorable day, a large crowd was present and that he moved through the crowd and solicited individuals to bid. He kept the bid open for more than an hour and he heard no such rumors. Gilman Carlson said he expected to bid at the sale but changed his intention after he heard the rumors. He supposed *474 the sale would be beyond his means and that he could not handle it. He admitted on cross-examination that he had made no definite arrangements to buy the land, prior to the sale. It is not shown clearly that he attended with the intention to buy or that the rumors prevented him from doing so.
The rule is firmly established that the chancellor possesses a broad discretion in approving or disapproving a master's report of sale, and that his decision will not be disturbed unless there is a clear abuse of that discretion. (Levy v. Broadway-CarmenBuilding Corp.
In Straus v. Anderson,
Furthermore, the rule above stated conforms to the intention of the Partition act. As above noted, section 27 of the act forbids the sale of property for less than two thirds of its appraised value. Section 29 states that if exceptions to the report of the master are filed, the court may "in its discretion, at once proceed to hear such exceptions and sustain or overrule the same." Thus the chancellor is expressly given a discretion whether to approve or disapprove the sale. To hold that he may not disapprove unless the price bid is so grossly inadequate as to shock the conscience or amount to fraud would nullify any discretion to disapprove for inadequacy of price, for it is obvious a bid of at least two thirds the value of property could not be that inadequate.
Appellees have assigned cross-error on that portion of the decree which provided that "the bidders be reimbursed for their expenses in attempting to sustain said sale, and the amount of reimbursement be reserved for the further consideration of the court." As we construe this provision, the only question reserved is as to the amount of expenses incurred, which would include attorney's fees. The rule is that nothing can be allowed and taxed as costs but items of costs designated by the statute to be so allowed and taxed. Wilson v. Clayburgh,
The decree will be reversed in part and the cause remanded, with directions to allow only such costs, if any, as are provided by statute.
Affirmed in part, reversed in part and remanded, withdirections.
Concurrence Opinion
I concur in the result reached in this case. There was, in my opinion, sufficient showing made to justify us in *478
holding the chancellor did not abuse his discretion in setting aside the sale here involved. I do not agree with the expressions contained in the opinion that the rules pertaining to confirmation of partition sales expressed in Shultz v. Milburn,
Dissenting Opinion
I am unable to concur in the conclusion reached by the majority opinion. It not only overrules numerous cases previously decided by this court and tends to make an auctioneer of the chancellor, but, in my opinion, destroys the incentive of prospective purchasers to attend the sale, resulting in unsatisfactory sales by reason of lessened competition, while it offers a premium to a prospective purchaser who chooses to wait until the sale is had by the master under such circumstances, and speculate on the possibility of buying the property from the court.
As this court has said in Shultz v. Milburn,
Mr. JUSTICE SHAW concurs in this dissenting opinion. *479