Henderson v. Kibbie

• Decision Date: 24 October 1904
• Citation: 211 Ill. 556,71 N.E. 1091
• Parties: HENDERSON v. KIBBIE et al.
• Court: Illinois Supreme Court

211 Ill. 556

71 N.E. 1091

HENDERSON

v.KIBBIE et al.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Circuit Court, McLean County; C. D. Myers, Judge.

Suit by Della J. Kibbie and others against Frank R. Henderson. From a decree in favor of complainants, defendant appeals. Affirmed in part.Rowell, Neville & Lindley and Welty & Sterling, for appellant.

Owen & Owen and Barry & Morrissey, for appellees.

BOGGS, J.

This is an appeal from a decree entered in the circuit court of McLean county setting aside a certain sale made by the sheriff of McLean county of the interest in remainder of the appellees in and to the northwest quarter of the southeast quarter and the northeast quarter of the southwest quarter of section 32, town 22 north, range 4 east of the third principal meridian, in said McLean county, Ill.

James R. Craig, father of the appellees, had caused the title to the lands to be placed in the appellees, subject to an estate for life in himself. Subsequently the wife of said James R. Craig (stepmother of the appellees) obtained a decree of divorce from him, with an award of alimony, and in a supplementary proceeding was granted a decree in chancery finding and declaring that the said lands, and all title and interest of the appellees therein, were subject to her marital rights, and subject to the lien of the decree for alimony which was entered in her favor in said divorce proceeding; but it was also ordered that the estate for life of the said James R. Craig in the lands should be first applied to the payment and discharge of said decree for alimony, and said life estate exhausted before the estate in remainder in the appellees should be sold thereunder. Under this latter decree the estate for the life of said James R. Craig was sold by the master in chancery, the appellant being the purchaser. There was no redemption, and on the 21st day of April, 1894, the appellant received a deed from the master in chancery conveying such estate for life to him. On the 5th day of May of the same year he entered into possession of the lands as the owner of an estate for and during the life of the said James R. Craig. On the 11th day of August, 1894, he contracted with Mrs. Craig for, and received from her, an assignment of all moneys due or to become due under the decree for alimony. On September 10, 1894, after he had obtained from Mrs. Craig the absolute assignment of the decree for alimony, he filed a petition in the circuit court of McLean county, in her name, setting up that alimony to the amount of $175 had fallen due and was unpaid, and praying that the remainder in fee in the said lands might be sold to pay the same. On December 11, 1894, a decree was rendered on said petition to the effect that $200 should be paid in full of all allmony due or to become due, that when the same was paid the alimony should cease, and that it was the intention to make this $200 a final allowance of alimony in the case. The fact that the appellant, before and at the time of the filing of the petition and the obtaining of the decree, had an absolute assignment of the decree for alimony and all moneys due or to become due thereunder, was not disclosed to the circuit court. An appeal was taken from the last-mentioned decree by the appellant herein, but in the name of Mrs. Craig, to the Appellate Court, and the decree was affirmed. The appellant then caused the case to be taken to the Supreme Court on a writ of error sued out in the name of Mrs. Craig. Neither the Appellate Court nor the Supreme Court was informed of the fact that appellant herein had an assignment of the decree for alimony and all moneys due or to become due thereunder. In this court, on such writ of error, it was held that Mrs. Craig had a vested property right in so much of the alimony as had accrued when the petition was filed, and that the circuit court was without power to divest that right, and that in that respect the decree was erroneous, and affirmed the decree in part, and reversed it in part, and ordered that the defendants in error, who are the appellees in this cause, should pay the cost of the proceeding in this court. This judgment for costs was rendered in the Supreme Court in November, 1896 (Craig v. Craig, 45 N. E. 153). On the 8th day of January, 1897, the appellant procured to be issued out of the office of the clerk of the Supreme Court a bill of costs adjudged to be paid by the plaintiff in error by the judgment of said Supreme Court, and also a bill of costs made out and taxed by the clerk of the court of the costs made by the defendants in error in the case. Appended to each of these bills of cost was an execution commanding the sheriff of McLean county to cause the amount of the said bills of cost to be made by levies on the goods and chattels, lands and tenements, of the said defendants in error in said cause. These fee bills were received by the said sheriff of McLean county on the 13th day of January, 1897. By virtue thereof the sheriff on January 19, 1897, levied on the estate in remainder of the appellees in said lands, and advertised the same for sale on the 15th day of February, 1897. At the sale the estate in remainder in each tract was offered separately, but no bids were received for either of them. The estate in remainder in both tracts was then offered en masse, and the appellant bid therefor the sum of $157.11; being the total amount of costs in the Supreme Court, as shown by the two fee bills, and of the costs of the sale. The two tracts of land were struck off and sold to the appellant for that sum, and, not being redeemed, the sheriff in May, 1898, executed a deed therefor to the appellant. This is the sale, and deed thereunder, which was ordered to be set aaide by the decree here brought into review. The relief was granted upon certain conditions and terms specified in the decree, which, so far as important to be here known, will be stated hereinafter.

The chancellor found, from the evidence adduced upon the point, that the estate in remainder in the two tracts of land at the time of the sale under the fee bills was worth $2,155, and that the sum of $157.11, for which they were struck off and sold en masse to the appellant at that sale, was grossly inadequate. The appellant insists the evidence does not justify the estimate of value made by the chancellor, but as his estimate, based upon the evidence as he views it, shows that the estate in remainder in the land sold was of the value of $1,600, it appears from his own showing that the land was struck off and sold to him for less than one-tenth of its value. So the evidence, in the most favorable view to be taken in behalf of the appellant, disclosed that the lands were sold at a grossly inadequate price. In addition to this, it did not appear from the indorsements made by the sheriff, or otherwise in proof, that he demanded payment of the cost bills, as it was made his duty to do by the provisions of section 28 of chapter 33 of our statute entiled ‘Costs.’ 1 Starr & C. Ann. St. 1896, pp. 1076, 1077. The provisions of this same section, in addition to requiring the sheriff to demand payment of the cost bills, authorized the cost bills to be levied only in the event payment should not be made within 30 days after the making of a demand for payment. This latter provision of the statute was ignored, and the fee bills were levied on appellees' interests in the lands within 6 days after the writs came to the hands of the sheriff, though it was proven the appellees resided in McLean county at the time, and that they and their places of residerce were well known to the appellant and to the sheriff.

There was no necessity that both tracts of the land should have been levied upon. The estate of the appellees in either tract so far exceeded in value the amount of the cost bills that a levy upon either would have been quite sufficient. The action of the appellant in refusing to bid any sum on either tract separately, though the estate in remainder in either tract was of value five times greater than the total amount of the cost bills and of the cost of sale, and his action in forcing both tracts to be sold en masse for less than one-tenth of their value, indicated that it was the primary purpose and design of the appellant to unfairly obtain the title to the lands.

While mere inadequacy of price bid for land sold subject to redemption may not of itself constitute ground for equitable interference, yet when, as here, the inadequacy is groos, the requirements of the statute designed for the protection of the owners of the property have not been observed, and the land has been sold en masse under circumstances indicating a purpose on the part of the purchaser, who was also a party in interest and attorney in the case in which the writs were issued, to improperly and unjustly use the process and the official as the means of obtaining the title to the land for but a very small part of the value thereof, equity will interfere to set aside the sale. Dutcher v. Leake, 44 Ill. 398;Henderson v. Harness, 184 Ill. 520,53 N. E. 786;Miller v. McAlister, 197 Ill. 72, 64 N. E. 254. We think the evidence warranted the application of this principle to the circumstances of this case.

The bill was filed June 16, 1902, nearly five years after the sale; and it is urged by the appellant that the appellees should have been declared estopped, by reason of laches, to question the sale after such long delay. It is a fixed principle of judicial proceedings in this state that objections to the validity and regularity of judicial sales should be promptly urged, and it is the general rule that any unreasonable, unexplained delay will bar relief, on the ground of laches. The circumstances of the case in hand were so exceptional that we are inclined to the view that the action of the chancellor in setting aside the sale on equitable terms should be sustained. The time allowed by the statute...