Mason v. Thomas , 24 Ill. 285 ( 1860 )

Catón, C. J.

In the case of Watson et al. v. Reissig, at the present term, ante, p. 278, we have decided that the court of law may exercise an equitable jurisdiction over the execution of its own process, and it is its duty to do so whenever the circumstances require it, and it may be done without injustice to any party. In that case, the sale was set aside on the application of the judgment creditor, who was the purchaser, and another execution was issued. In this case, the application is made by the judgment creditors, who are the owners of the land sold, for the reason that the sale was never advertised as required by law. The question of jurisdiction is the same in both cases, and it requires no further consideration at the present time.

Was such a case made as authorized the court to set aside the sale ? The proof is clear and uncontradicted that the premises in question were never advertised as by law required, but that another lot in another section was advertised, by mistake; instead of the lot levied upon and sold. This no more authorized the sale of this lot, than as if no advertisement whatever had been made. That it was the duty of the court to set aside the sale, we have no doubt. The attorney of the plaintiff was the purchaser, and was chargeable with notice of the irregularity.

It is not necessary now, to say whether this irregularity would have rendered the sale absolutely void, so that the owners could have taken advantage of it on a contest of the title acquired under the sheriff’s sale.

The judgment must be affirmed.

Judgment affirmed,.