20 Ill. 304 | Ill. | 1858
This case presents a series of blunders, of which the defendant here, Gardner, must be the victim.
The sacrifice of a large estate for a small sum of money, is always to be regretted; but justice requires that a party shall suffer for his own laches when without excuse.
Had the defendant here, Gardner, applied at the proper time, at the earliest practicable moment, to the court whence the execution issued, to set aside the sale on the ground that the whole tract was sold when it was susceptible of a just division,—if the fact was so,—and made proper proof of the fact, the court might have set it aside, and directed a new execution to issue. But he did not do so; he made no effort at relief in this direction, and turned out the whole tract himself to the sheriff, to sell.
Again, he knew of the sale by the sheriff, and of the amount necessary to redeem, and the day on which his right to redeem expired. Yet he docs nothing but fold his arms in unconcern, and suffers the day to elapse, and not until January 26th, 1857, some three weeks or more after the time had expired, does he consider it necessary to move in the matter.
On that day, he deposits with the clerk of the Circuit Court an amount large enough to redeem the land; but the day of grace had passed, and the clerk had, at no time, any right to receive the money; so he can take nothing by that motion.
This money being refused by the purchasers, or their agent, Olney, on the 24th of February following, Gardner received it back, he having, on the 21st of February, confessed a judgment in favor of one Gilbert, for $404.66, to make Mm a judgment creditor, so that he might redeem. On the 24th April, Gilbert paid to the then sheriff, Tisdell, (the sheriff Wilson, who made the sale, having died,) the amount of the judgment, interest and costs for which the land was sold, and on the 5th of May following, received it back again. On paying this amount to the sheriff, to redeem, he did not, as the statute requires, deliver at the same time to the sheriff an execution on Ms judgment (R. L. 1845, chap. 57, sec. 14), and of course gained nothing by that proceeding. On that day, Gardner filed his bill of complaint and obtained a decree in his favor, to the effect that, on paying the purchase money, with ten per cent, and costs, the purchasers should re-convey to him.
We are at a loss to find a single hook on which to hang this case. We do not know of any power existing in a court of equity to dispense with the plain requirements of a statute; it has been always disclaimed, and the real or supposed hardship of no case can justify a court in so doing. When a statute has prescribed a plain rule, free from doubt and ambiguity, it is as well usurpation in a court of equity as in a court of law, to adjudge against it; and for a court of equity to relieve against its provisions, is the same as to repeal it. Fonblanque Eq., book 1, chap. 1, sec. 3.
If the sheriff who sold the land was dead, what did it matter to the judgment debtor? He knew, or should have known, he could pay the money to his administrator,or, as has been held in the case of McClusky v. McNeely, 3 Gilm. R. 579, to his deputy, and certainly to the purchaser. R. L. 1845, chap. 57, sec. 13. He did not choose to do either, but was content to deposit the amount, in currency, with the clerk, whose right to receive it was no better than that of the town constable. This right to redeem is a statutory privilege, and its behests must be obeyed.
From beginning to end, the complainant seems to have been doomed to blunders, until, from their repetition, he has lost a valuable property.
Whilst our law allowing redemptions remains as it is, it may be expected that frequent cases of this kind may occur, the party, by reason of the smallness of the amount of the judgment, not being impelled to any great activity. In a country where money is worth vastly more than the rate allowed a purchaser on redemption, it is not at all probable that any person other than the judgment creditor will be a bidder at such sales, and he only as the last chance to get security for his debt. Were there no redemption, and these sales open to fair and free competition, not below a certain valuation, it is quite probable such cases of great hardship would rarely occur, and men’s property would be sold for its real value, or nearly so.
On full consideration of all the allegations and proofs in this cause, we are of opinion that the bill contains no equity upon which to base the relief decreed, and that the decree is unwarranted by the facts, and unsupported on correct equitable principles. The decree is therefore reversed and the bill dismissed.
Decree reversed.
