Skakel v. Cycle Trade Publishing Co. , 237 Ill. 482 ( 1908 )

Mr. Chief Justice Cartwright

delivered the opinion of the court:

On March 25, 1902, William Skakel, appellee, filed his bill in equity in the circuit court of Cook county against the Cycle Trade Publishing Company and James Artman, appellants, asking the court to set aside a judgment recovered against him in favor of said cycle company before a justice of the peace of said county on September 21, 1900, and a sale of real estate made by the sheriff of said county to Art-man on May 21, 1901,' in pursuance of the transcript filed in the office of the clerk of the circuit court and an execution issued thereon. The grounds for relief alleged were, that the judgment was taken in violation of an agreement between the attorneys of the parties, under which the suit had been continued from time to time from July 23, 1900, until September 21, 1900, and that he had a good defense, and the bill also alleged that the property sold for $132.04 was worth $20,000. After the bill was filed and before answering, defendants, for the purpose of inducing a settlement and avoiding the expense of litigation, offered to accept $75, which was a little more than half the amount due, and settle the whole matter, but the offer was rejected. The defendants then filed their answer and the replication was filed thereto. On March 5, 1906, Artman paid $332.99 taxes on the property for the year 1905. On June 19, 1906, the complainant filed a supplemental bill, alleging that a deed had been made by the sheriff and asking to have it set aside. On July 1, 1907, Artman paid $332.27 taxes for the year 1906, and on March 19, 1908, he paid $352.68 taxes for the year 1907. The cause came on for hearing and the court heard the evidence, and afterward, on March 31, 1908,' gave the complainant leave to file instanter an amendment of his bill upon the terms of paying to Artman the taxes paid, as aforesaid, with interest, and $500 attorney’s fees. The amendment was made, alleging that the transcript filed with the clerk of the circuit court contained this copy of the return on the execution issued by the justice:

“The within named defendants, William Skakel and Edmund Church, have no personal in my county whereof I can cause to be made the judgment and costs within mentioned, or any part thereof, according to the command of the within writ, and I therefore return the same, no part satisfied, this eleventh day of March, 1901.

H. B. Goodrich, Constable."

—and further alleging that the levy was grossly excessive, an abuse of the process of the court and a fraud upon the rights of complainant, and that the sale was made en masse. The court thereupon on the same day entered a decree specifically finding, and reciting in detail, the requisite facts to show that the judgment and the sale were legal in every respect; that the sheriff at the sale first offered the premises in separate tracts or lots, and no bid having been made for any of said tracts or lots separately, he then offered any two or more, less than the whole number, together, and no bid having been made for any two or more of said tracts or lots less than the whole number, he • then offered the premises together and they were sold by him for $132.04. The decree found that the attorney of the cycle company notified, complainant that the levy had been made and the premises had been advertised for sale and informed complainant of the time fixed for the sale. The court found as a fact that the five lots sold were worth $4000 each and the whole premises worth $20,000, and concluded, as a matter of law, that the levy upon the four lots and bidding for and purchasing the whole was a fraud upon the complainant. The court therefore decreed that Artman should convey all his interest in the premises to the complainant upon re-payment of the amount of the sale, with interest at six per cent, and the amount of the taxes, with interest at the same rate, and $500 solicitor’s fees. From that decree this appeal was prosecuted.

The judgment was rendered by the justice on September 21, 1900, and at the time of the levy on the real estate the complainant was notified of the fact and of the time when the sale would take place. He had been served with process in the suit and had paid no attention to it after his recovery from the illness on account of which it had been continued. If he first learned of the judgment when it was too late to appeal and he had not been at fault, there was still time and opportunity to remove the case to the circuit court by certiorari. He paid no attention to the notice of the levy or to the sale, but within a year after the sale, when he had a right to redeem, he filed his bill to set aside the judgment and sale. When the bill was filed the cycle company offered to accept $75 in full of the claim, but the complainant rejected the offer. He still had several months to exercise his legal right to redeem the property, but he made no redemption, and on September 30, 1902, the sheriff made a deed to Artman. On the day the decree was rendered, and after the cause was heard, the complainant for the first time, by his amendment, charged the defendants with fraud, and alleged that the sale was made en masse and that the word “property” was omitted in the copy of the constable’s return included in the transcript. The complainant failed and neglected to pursue any of the legal remedies that were open and available to him, and there is no element in the case which commends him to a court of equity.

The only possible ground of complaint is that valuable property was sold for a small price, and it is settled beyond controversy that mere inadequacy of price will not justify a court of equity in setting aside a judicial sale where there is a right of redemption. Public policy and the interest of debtors require that stability should be given to judicial sales, and that they should not be disturbed unless there has been some mistake, fraud or the violation of some duty by the officer making the sale or the purchaser. In Davis v. Pickett, 72 Ill. 483, this court affirmed a decree dismissing the bill where a forty-acre tract worth $300 was sold for $5; a quarter section worth $2000 to $3000 was sold for $2.50, and two town lots worth $75 each were sold for $2. The rule was there emphatically stated that mere inadequacy of price, however great, is not ground for setting aside a judicial sale. In O’Callaghan v. O’Callaghan, 91 Ill. 228, a house and lot worth $4000 were sold for $10, but it was held that such fact, alone, was not ground for setting aside the sale, and that the circuit court could not do otherwise than it did and dismiss the bill. In Dobbins v. Wilson, 107 Ill. 17, where property was sold for $2700 and re-sold by the purchaser for $18,000, and the complainant did not choose to avail himself of the privilege of redemption, it was held that equity would afford no relief. There is no case cited by counsel where a sale has been set aside for mere inadequacy of price, where the owner could have paid the amount of the bid and redeemed his land.

The point is made that the transcript omitted the word “property” after the word “personal,” in the return of the constable. If this rendered the sale void so that the purchaser acquired no title, it appeared on the face of the transcript and would afford no basis for relief in a court of equity. The court, in the decree, found and recited as a fact that the execution was duly issued, and that the constable “did duly return the said execution into the said justice court with his return duly endorsed thereon, by which it appeared that the defendants named in said execution, William Skakel and Edmund Church, had no personal property in said Cook county whereof could be made the said judgment and costs in said execution mentioned, or any part thereof, according to the command of said writ, and that therefore said constable returned the same no part satisfied the nth day of March, A. D. 1901.” No cross-errors have been assigned on that finding of fact. It appears, then, that there was a mere omission of a word in the copy filed in the clerk’s office, but the copy could mean nothing except that no personal property was found. The execution commanded that of the goods and chattels of the defendants the constable should make the amount of the judgment, and the statute made it the duty of the constable to proceed with the collection of the execution by levy on personal property, and when it should appear by the return of the execution that the defendants had not personal property sufficient to satisfy the judgment and costs, a transcript might be filed in the office of the clerk of the circuit court. The word “personal” applied to anything out of which the judgment and costs could be made by the constable,—could mean nothing but personal property of the defendants. Artman had a right to bid as he saw fit and violated no duty which he owed to the complainant in so doing. The judgment of the justice of the peace was a valid and enforceable claim against the complainant and the sale was regular in all respects. The complainant did not choose to avail himself of the right of redemption which was ojpen to him, but chose to stand by while Artman paid the taxes on the property, and refused even to settle the claim for a part of the amount for which the land was sold. Under these circumstances a court of equity ought not to give him any relief.

The decree of the circuit court is reversed and the cause is remanded to that court, with directions to dismiss the bill.

Reversed and remanded, with directions.