Bozza v. Rowe
Decision Date | 31 January 1863 |
Citation | 20 Peck 198,1863 WL 3037,83 Am.Dec. 184,30 Ill. 198 |
Parties | JAMES BOZZA, Plaintiff in Error,v.JOHN ROWE, Administrator of James Rowe, Defendant in Error. |
Court | Illinois Supreme Court |
30 Ill. 198
1863 WL 3037 (Ill.)
83 Am.Dec. 184
20 Peck (IL) 198
JAMES BOZZA, Plaintiff in Error,
v.
JOHN ROWE, Administrator of James Rowe, Defendant in Error.
Supreme Court of Illinois.
January Term, 1863.
Sales of real estate by an administrator, are within the provisions of the statute of frauds and perjuries, and cannot be enforced, unless there is a memorandum of the sale signed by him.
The refusal, by a vendor, to sign a memorandum in writing, is not a fraud, so as to take the case out of the operation of the statute of frauds.
THIS was a bill in chancery filed by plaintiff in error, in the Madison Circuit Court, to compel a specific performance of a sale made by defendant in error, as administrator of James Rowe, deceased.
The bill alleges that Rowe, as administrator of his brother, James Rowe, deceased, obtained an order of the probate court to sell lands to pay debts. He offered the land for sale, and the complainant bid, and the property was struck off to him, as being the highest and best bidder.
That afterwards complainant applied to Rowe to make a deed in pursuance of the sale, offering to perform on his part, in accordance with the terms on which the land was sold, and that Rowe refused to make the deed. The prayer of the bill is for specific performance, and for other relief.
There was no memorandum in writing of the sale.
The defendant pleaded the statute of frauds and perjuries.
The court dismissed the bill, and rendered judgment against the complainant for costs.
The errors assigned, are:
The court erred in sustaining the plea.
The court erred in dismissing the complainant's bill.
The court erred in rendering judgment against the complainant for costs.
SETH T. SAWYER, for Plaintiff in Error.
DAVIS & BAKER, for Defendant in Error.
The sale in this case was within the statute of frauds, and
[30 Ill. 199]
to make it binding on the defendant Rowe, there should have been a memorandum in writing of the sale as required by the statute of frauds, and signed by said defendant or his agent. 5 Mason, 114.The English doctrine, which formerly provided that sales of lands by masters in chancery under decree of court were not within the statute of frauds, has been overruled in this country, and the doctrine now universally obtains in this country that sales by masters, and sheriffs, and all judicial sales, are within this statute. 2 Parsons on Cont., 293, note R; Simond v. Catlin, 2 Cains, 61; Jackson v. Catlin, 2 Johnson, 248; Ennis v....
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Potter's Estate, In re
... ... * * *' ... The same effect of changed circumstances was early recognized in Illinois in Bozza v. Rowe, 30 Ill. 198, 83 Am.Dec. 184; 21 Am.Jur., Executors and Administrators, § 567, p. 699; and in a guardianship matter in Harkrader v. Bonham, ... ...
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... ... (Morrill v ... Davis, 27 Neb. 775; Hurt v. Stull, 4 Md. Ch., ... 391; Armor v. Cochrane, 66 Pa. 308; Bozza v. Rowe, ... 30 Ill. 198.) ... Had the ... bid made for Castetter been unconditional it would not have ... bound him. (Brown v ... ...
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... ... under execution or order of court are within the statute of frauds is not an open question. Maginnis v. Oil Co. (La.) 18 South. 459; Bozza v. Rowe, 30 Ill. 198; Dawson v. Miller's Adm'r, 20 Tex. 171; Brock v. Jones, 8 Tex. 79; 2 Freem. Ev. § 299. If a sheriff refuses to receive a bid, ... ...