Malaer v. Hudgens

• Decision Date: 31 October 1889
• Citation: 22 N.E. 855,130 Ill. 225
• Parties: MALAER et al. v. HUDGENS.
• Court: Illinois Supreme Court

130 Ill. 225

22 N.E. 855

MALAER et al.

v.HUDGENS.¹

Supreme Court of Illinois.

Oct. 31, 1889.

Error to circuit court, Johnson county; O. A. HARKER, Judge.

MAGRUDER, J., dissenting.

Clemens & Warder

, for plaintiffs in error.

BAKER, J.

Alexander Hudgens filed his bill in the Johnson circuit court against the plaintiffs in error, Constantine Malaer and Mahala Springs, asking the partition of certain real estate. At the December term, 1878, of the court, plaintiffs in error were defaulted, and a decree pro confesso entered. The court found that defendant in error was the owner in fee of an undivided eight-tenths of the lands, and that each of the plaintiffs in error was the owner in fee of an undivided one-tenth of said lands, and decreed partition, and appointed commissioners to make the same. The commissioners reported, showing the lands were not susceptible of division, and placing values upon the several tracts, which amounted in the aggregate to $1,400. At the same term of the court this report was approved, and the lands decreed to be sold; and the terms of the sale, as fixed by the court, required that 10 per cent. of the purchase money should be paid in cash, and the residue in 12 months,-the deferred payment to be secured by note, with personal security, and a mortgage on the premises. At the November term, 1879, the master in chancery reported that he had struck off said lands, on January 27, 1879, to Alexander Hudgens, for $933.33 1/3, but said Hudgens had failed to comply with the terms of the sale. The court thereupon ordered the master to resell the same. On March 23, 1881, a written notice, signed by the master, was served on Hudgens, that unless he made good his bid on or before the 1st day of the April term of the court, 1881, he (the master) would make application to have the lands resold. At said April term an order was entered, reciting such notice, and ordering the master to readvertise and sell as provided in the decree of 1878, and ordering that all additional expenses and costs occasioned by the default of Hudgens should be taxed to him. At the April term, 1882, an order was made reciting the sale to Hudgens for $933.33 1/3; his failure to comply with the terms of sale; and that he had been notified in writing, more than 10 days before the first day of the term, to comply with said terms of sale; and ordering, adjudging, and decreeing that said lands be sold by the master in chancery ‘to satisfy the costs.’ At the November term, 1883, of the court, the master reported that in pursuance of the decree rendered at the April term, 1882, he had, on the 10th day of July, 1883, struck off and sold the whole of said lands to C. N. Damron, subject to the right of redemption, for $35; that being the amount of costs. An order was entered on November 22, 1883, approving this report; and the cause was continued for final report. At the November term, 1884, the master reported he had, in pursuance of the decree rendered at the April term, 1882, executed and delivered on the 15th day of November, 1884, to C. N. Damron, in default of redemption, a deed of conveyance for all of said lands; and an order was made approving such report. This writ of error was sued out of this court on the 14th day of November, 1888, and by it the record was brought directly from the circuit court to this court. The assignments of error are as follows: ‘(1) The decree of the court below at its April term, 1882, for the sale of the lands described for the costs of the suit, was a nullity, and void. (2) The court below erred in its order at the November term, 1883, approving the master's report of sale of the lands in question, under the void order of the court at the April term, 1882. (3) The court below erred in its order at the November term, A. D. 1884, approving the master's report of deed to C. N. Damron, under the sale based upon the void decree of sale at the April term, 1882. (4) The court below erred in not setting aside the sale of the master in chancery, reported at the November term, A. D. 1883, of said court. (5) The court below erred at its November term, A. D. 1884, in failing to cancel at that time the master's sale of said lands, when called to act upon the master's report of a deed to C. N. Damron. By reason whereof the...