Eldred v. Moehring , 83 Ill. App. 264 ( 1899 )

Mr. Justice Sears

delivered the opinion of the court.

There is no dispute as-to the facts alleged by the bill of complaint in relation to the homestead right of appellee Dorothea Moehring. It is admitted that no appraisers were appointed and no steps taken to have the homestead set off, and that the requirements of the statute in that behalf were in no manner complied with. The evidence is conflicting as to the value of the land. But we are of opinion that the finding of the chancellor is supported by the preponderance of the evidence. The only question presented is as to whether the great inadequacy of price, taken together with the irregularity of the sale, in that the homestead was not set off, and no attempt was made to comply with the requirements of the statute relating to sales of homestead on execution, is sufficient' to warrant the relief granted. We regard the decision in Bullen v. Dawson, 139 Ill. 633, as absolutely disposing of any question in this behalf. The facts of that case were so similar to the- case here, and the decision is so clearly in point, that we view it as controlling. The court said in that case:

“ While mere inadequacy of price is not ordinarily sufficient to justify setting aside a sale under execution and jlermitting the judgment debtor to redeem, after the statutory period of redemption has expired, the rule is that such inadequacy of price, if gross, will be sufficient, when taken in connection with other, and sometimes even slight circumstances of irregularity in the mode in which the sale was conducted. It can scarcely be pretended that the failure of the sheriff to take the steps prescribed by the exemption law before selling the premises in question, was not an irregularity, or that it was not prejudicial to the complainant. Property can be sold for the highest price only when the sale is legal and regular.. FTo competition in bidding is likely to arise when the sale attempted to be made is one which will be void in law, and only confer upon the purchaser an equitable right,” etc.

In that case the price bid at the sale was $338.65, and the evidence tended to show that the value of the land above incumbrances was many times as great. The same can be said of the relation of price to value in the case here. And in this case, as in the cases cited, there was no demand for payment of the judgment and no notice given that a sale was to be made.

We are of opinion that the joinder of Harwood, the executor, as a party complainant, should not operate to altogether reverse this decree, which is substantially correct. The rights and equities of appellant have not been prejudiced by the error.

The decree will be affirmed in all other particulars, and the cause remanded, with directions to the Superior Court to modify the decree by ordering the bill of complaint dismissed as to complainant Fryer Harwood, executor of the last will of Louis Hoehring, deceased. Affirmed in part and reversed in part.