Misener v. Glasbrenner

• Decision Date: 17 April 1906
• Citation: 77 N.E. 467,221 Ill. 384
• Parties: MISENER v. GLASBRENNER.
• Court: Illinois Supreme Court

221 Ill. 384

77 N.E. 467

MISENER

v.GLASBRENNER.

Supreme Court of Illinois.

April 17, 1906.

Appeal from Superior Court, Cook County; Theo. Brentano, Judge.

Action by Fred Glasbrenner against Sidney Misener. From a decree in favor of complainant, defendant appeals. affirmed.Stirlen & Faulds and A. J. Bedard, for appellant.

Elmer E. Wagner and William G. Bopp, for appellee.

This is an appeal by Sidney Misener, appellant, from a decree entered by the superior court of Cook county in favor of Fred Glasbrenner, appellee, setting aside a sheriff's deed dated November 26, 1904, to certain real estate situated in that county. The facts in the case are substantially as follows: On September 27, 1893, a judgment was rendered against one Michael Glasbrenner, father of appellee, before a justice of the peace in said county in favor of William Winkler for $78, and on November 14th following a transcript of the same was filed in the office of the circuit clerk. On January 4, 1894, execution was issued upon this transcript, and returned no property found. In July, 1895, Michael Glasbrenner died intestate, seised of the property in question, and leaving surviving him his widow, Maria Glasbrenner, and Fred Glasbrenner, appellee, his son and only heir at law. Subsequently the widow was married to August Weinert and removed from the premises. There was no administration of the estate of Michael Glasbrenner, and no effort was made on the part of the judgment creditor to have his judgment paid out of the estate. In June, 1900, the appellee, Fred Glasbrenner, moved on the premises and occupied them as his homestead, subject, however, to the dower rights of his mother. On July 23, 1902, the judgment creditor began scire facias proceedings in the circuit court of Cook county to revive the judgment against Fred Glasbrenner, Maria Weinert, and August Weinert, and a judgment of revival was rendered by default. On July 22, 1903, that judgment was assigned to appellant, Sidney Misener. Execution was levied on the premises, and on August 25, 1903, they were sold by the sheriff to appellant for $169.82, and on November 26, 1904, after the expiration of the equity of redemption, a sheriff's deed was executed to him. On December 24, 1904, appellee filed his bill in the superior court of Cook county to set aside said deed, on the ground that the sale was for a grossly inadequate price and a fraud on the rights of complainant; that the homestead rights of appellee, acquired in 1900, were prior to the lien of the judgment acquired by the scire facias proceedings of 1902; that the homestead was exempt from sale under said revived judgment, and that the sheriff sold the same without setting off said homestead; that no demand for the payment of said judgment was ever made on him, and he never had any notice of any execution issued on said judgment or of levy or sale of said property by the sheriff; and that he received no notice of said sale until November 29, 1904, after the expiration of the equity of redemption and after said deed had been issued to appellant. Upon answer being filed denying the irregularities in the sale as alleged in the bill, a decree was entered setting aside the deed upon the payment by appellee to appellant of $169.82, with interest thereon at 5 per cent. from August 25, 1903, one-half of the cost of suit being taxed against each party. To reverse this decree an appeal has been prosecuted by appellant to this court.

WILKIN, J. (after stating the facts).

It is insisted that the premises in question, at the time of the sale, were worth $2,000, were occupied by appellee as a homestead, and that he was the owner in fee of the same, subject to the downer interest of his mother and a mortgage of $700; that they were sold for $169.82 on a judgment which was originally for $78; that appellee had no notice of the issuing of the execution or the levy of the same or the sale of the premises, and that he knew nothing of any of the proceedings until the sheriff's deed had been issued and the equity of redemption had expired; that no demand was made upon him by the sheriff and no steps taken to assign his homestead in the premises.

It seems to be very apparent from the evidence that no demand was made upon appellee or that he had any notice whatever of the proceedings. That he would have permitted premises of the value of at least $1,000 to be sold for a debt of $169.82 would seem unreasonable. While it has been held in a great many cases that mere inadequacy of the price alone is not sufficient to set aside a sheriff's sale, yet this fact, in connection with other irregularities, will avail. In the case of Hobson v. McCambridge, 130 Ill. 367, at page 377, 22 N. E. 823, at page 826, we said: ‘It is equally clear from a preponderance of the evidence that the sheriff did not serve the execution held by him or give notice of it to the defendants, and it is not pretended that any notice was even sent to the defendant upon whose property the execution was levied. These facts might well warrant the court in finding that there had been an attempt on the part of Hobson to obtain not simply the payment of his debt, but an unfair advantage, and securing a tract of land shown to be worth over $2,000 for the sum of $83.65. * * * It is undoubtedly the rule that, when the debtor has the right of redemption, inadequacy of price alone will not justify the vacation of a sale on execution or setting aside a judicial sale. Gibbons v. Bressler, 61 Ill. 110;Watt v. McGalliard, 67 Ill. 513;Allen v. Shepard, 87 Ill. 314;Davis, Cory & Co. v. Chicago Dock Co., 129 Ill. 180, 21 N. E. 830. Where the inadequacy is gross, the purchaser can retain his advantage only by showing that he acquired title by proceedings free from fault or irregularity. If, says Mr. Freeman, the inadequacy can be connected with or shown to result from any mistake, accident, surprise, misconduct, fraud, or irregularity, the sale will generally be vacated unless the complainant was himself in fault or the rights of innocent third parties have become dependent on the sale. While inadequacy alone may not, upon the grounds of public policy, be sufficient of itself to set aside a sale on execution or a judicial sale, yet where there are circumstances of irregularity or of fraud, or that show that unfair advantage was sought by the purchaser or the person benefited by the sale, the inadequacy of price may be always taken into consideration and may become conclusive evidence of fraud. Freeman on Executions, § 309; Morris v. Robey, 73 Ill. 462; Davis, Cory & Co. v. Chicago Dock Co., supra, and authorities cited. In this case there is a palpable, gross inadequacy in price, and that there are serious errors and irregularities in the proceedings cannot be questioned. * * * It seems improbable that Mrs. McCambridge would have permitted redemption to expire, under the...