Hays v. Cassell

• Decision Date: 30 September 1873
• Citation: 70 Ill. 669,1873 WL 8660
• Parties: WARREN HAYSv.ROBERT T. CASSELL.
• Court: Illinois Supreme Court

70 Ill. 669

1873 WL 8660 (Ill.)

WARREN HAYS

v.ROBERT T. CASSELL.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

This was a motion to set aside a sheriff's sale of land on execution, by Robert T. Cassell, the defendant in execution. The notice of the motion was served on John Clark, the attorney of the plaintiff in execution. The opinion of the court states the other necessary facts, and the grounds of the motion.

Mr. JOHN CLARK, for the plaintiff in error.

Messrs. INGERSOLL, PUTERBAUGH BROS. & MCCUNE, for the defendant in error.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was a motion in the circuit court of Woodford county, by the defendant in execution, to set aside a sale of land thereunder, for the reason that, since the sale, the judgment on which it issued had been reversed by this court. Due notice was given to the purchaser at the sale, who appeared and resisted the motion.

The judgment under which the proceedings were had was rendered by the circuit court of Woodford county, at the April term, 1867. The execution issued thereon bore date October 22, 1868, and the sale made of the premises in question on the 27th February, 1869.

On the same day a certificate of sale was delivered to the purchaser and filed. In August, 1869, the purchaser assigned the certificate to one Sowards. Notice of the motion to set aside the sale was dated March 10, 1870, and the motion duly submitted to the court at the April term, next following.

The judgment on which the execution was issued was reversed by this court at the September term, 1869, and opinion filed in vacation, January 11, 1870, and the final order then entered, remanding the cause.

On these facts, the plaintiff in error, who was plaintiff in execution, makes the point, that the circuit court had no power to set aside the sale, on motion of the defendant in the execution, after the expiration of twelve months from the day of sale.

The plaintiff was not the purchaser at the sale, but his attorney, and he testifies he made the purchase on his own account, and not for plaintiff's benefit. He paid no part of the execution at the time he bid off the property, but the costs only, and, as attorney, gave to the sheriff a receipt for the amount of the judgment. Under these circumstances, we are inclined to hold, the purchase was the purchase of the plaintiff in the execution. The certificate of purchase was also his, and could not be transferred to another without authority.

But, admitting the purchase was the purchase of the attorney on his own account, he knew the record had been taken to the Supreme Court, and he purchased at his peril, and can hardly be regarded as a bona fide...