Barnes v. Henshaw

• Decision Date: 18 April 1907
• Citation: 226 Ill. 605,80 N.E. 1076
• Parties: BARNES v. HENSHAW et al.
• Court: Illinois Supreme Court

226 Ill. 605

80 N.E. 1076

BARNES

v.HENSHAW et al.

Supreme Court of Illinois.

April 18, 1907.

Appeal from Circuit Court, Woodford County; G. W. Patton, Judge.

Bill by R. Magoon Barnes against Mary W. Henshaw and others. From an order setting aside a sale and ordering a new sale, plaintiff appeals. Reversed and remanded.

Farmer, J., dissenting.R. Magoon Barnes (L. W. MacNeil and Jay H. Magoon, of counsel), for appellant.

C. H. Radford and Charles L. Capen, for appellees.

Appellant filed his bill March 23, 1905, in the circuit court of Woodford county, for partition of certain real estate between himself and other parties, alleged to be the owners thereof as tenants in common. At the September term, 1905, decree of partition was entered and commissioners appointed to partition the lands. At the same term of court the commissioners reported that the premises were not divisible without manifest prejudice to the parties, and appraised them at $7,120. A decree was thereupon entered approving the report of the commissioners and directing a sale of the lands. In pursuance of the decree the master in chancery sold the premises to appellant October 28, 1905, and filed his report of sale. At the December term, 1905, appellees filed objections to the report, and by agreement on December 12, 1905, it was set aside, and the master ordered to readvertise and sell the premises on some day after January 26, 1906, upon the terms and conditions named in the decree. The master, in accordance with said last-named decree, again sold said land February 20, 1906; complainant again becoming the purchaser. On March 17th appellees filed objections to the master's report as to the second sale. Affidavits were also filed in support of the sale. After a hearing on these objections, appellees (then objectors) being represented by counsel, the circuit court on May 7, 1906, overruled the objections, confirmed the master's report, and directed that a deed be made to the purchaser. On the same date appellees prayed an appeal from the order, but this appeal was never perfected. At the September term, 1906, appellees entered their motion to vacate the decree of sale and all proceedings thereunder, and to dismiss the bill for want of equity, alleging as grounds therefor that the rights of all parties interested were not properly set forth in the bill, in that the original decree stated that there were eight mortgages on the land, aggregating $2,850, and that the decree did not specifically find the amount of these mortgages that were unpaid; that the bill did not properly set up the interests of the life tenant, Daniel W. Buck, Sr.; that the bill was vague, uncertain, and misleading to possible purchasers as to the interests to which the land was to be sold subject; and that the possible bidders thereby were deterred from purchasing. On the hearing of this motion the court entered a decree setting aside all former sales and referring the matter back to the master, with directions to require proof of title, etc. From this order appellant prayed an appeal to this court, which was never perfected. On October 8, 1906, at the same term of court, appellees filed additional objections to the report of sale made February 20th, setting up, in addition to the points made by the former objections, the fact that the property had been sold for an inadequate price, and that the life tenancy of Daniel W. Buck, Sr., had in the meantime been terminated by his death, and for that reason, if the land was resold, it would bring a largely increased price; also objecting that no decree had been entered against one John Harley, his heirs or assigns, whereas the original bill had set up certain facts from which said Harley or his heirs or assigns might have an interest. The same day an order was entered by the court finding that this property was originally owned by the heirs of Drusilla Buck, and that eight of said heirs had mortgaged their respective interests in the property; that the original decree failed to find the amount due or owing on any of these mortgages; that the original sale was to be made subject to them; and that therefore the decree of sale entered September 13, 1905, was improvidently made. The decree also recited that appellees filed objections to this original sale, and on December 12, 1905, consented that said sale be set aside and a resale of the property directed; that in said last-mentioned decree it was stated that all the mortgages upon said premises, save two, amounting on their face to $750, had been paid since the former decree of sale was entered, but that neither the court nor the master heard any evidence upon that question; that by reason of the uncertainty of the amounts of said mortgages, so far as the record discloses, prospective bidders could not safely and intelligently bid upon the said premises. Further finding was made that the life estate of Daniel W. Buck, Sr., had been terminated by his death. The decree further found that the equities were with appellees, and ordered the sale set aside, and that the cause be referred to the master in chancery to ascertain the amount of principal and interest on the mortgages outstanding, if any, against the lands, and, on the report of same being approved, that the land should be readvertised and sold to the higest and best bidder free from the life estate of said Daniel W. Buck, Sr., and that the notice of sale should describe with reasonable certainty the tract of land for which the Christian Church of Palestine held a deed of conveyance, as set up in the pleadings. From this order an appeal was taken to this court.

CARTER, J. (after stating the facts).

Claim is made that the order of the trial court setting aside the decree and approving the master's report of sale is not such a final order as can be appealed from. This court has so many times passed upon the question of an order confirming or setting aside a sale on direct appeal from the trial court that whether such an order is final and appealable is no longer open for consideration in this court. Duncan v. Sanders, 50 Ill. 475;Heberer v. Heberer, 67 Ill. 253;Sowards v. Pritchett, 37 Ill. 517;Quigley v. Breckenridge, 180 Ill. 627, 54 N. E. 580;Wilson v. Ford, 190 Ill. 614, 60 N. E. 876;Quick v. Col. 197 Ill. 391, 64 N. E. 288;McCallum v. Chicago Title & Trust Co., 203 Ill. 142, 67 N. E. 823;Kiebel v. Leick, 216 Ill. 474, 75 N. E. 187;Compton v. McCaffree, 220 Ill. 137, 77 N. E. 129. Under the long-established practice on this point, as shown by the decisions just cited, it must be held that this appeal was properly brought to this court.

The order overruling the objections to the master's report of the second sale, and confirming the report, and directing a deed to the purchaser, was entered on May 7, 1906, at the April term of the trial court. The order setting aside the sale from which this appeal was taken was entered at the September term, on October 8, 1906. This court held, in Cook v. Wood, 24 Ill. 295, that after a term had expired a court had no discretion or authority at a subsequent term to set aside a judgment, and could amend it only in a mere matter of form. This decision has been quoted with approval many times by this court since it was rendered. See, among other cases, Fix v. Quinn, 75 Ill. 232;Coursen v. Hixon, 78 Ill. 339;Tosetti Brewing Co. v. Koehler, 200 Ill. 369, 65 N. E. 636;Ford v. First Nat. Bank, 201 Ill. 120, 66 N. E. 316. If fraud had entered into or become a part of the final order, the rule would be otherwise; but no such charge is made in the objections filed, neither does the order itself setting aside the order of sale state any such ground. In the objections filed at the April term, asking the court not to approve the second sale, the charge was made that the master in chancery was in collusion with appellant as to certain matters. After the hearing of the objections which raised this question, the court overruled them, and entered an order at that term approving the sale and directing a deed to be issued to the purchaser.

It is true, as claimed by appellees, that the first decree ordered a sale of the premises subject to some eight mortgages, aggregating on their face some $2,850, without setting up clearly what ones, if any, had been paid, or the interest due on them; but the decree ordering the second sale specifically stated that two of these mortgages were still unpaid, amounting, in principal, to $750. There is nothing in the record to show what mortgages had been paid off, except the inference that would fairly be drawn from the wording of the two decrees on this question. There is nothing...