Stewart v. Croes

• Decision Date: 30 June 1849
• Citation: 10 Ill. 442,5 Gilman 442,1849 WL 4211
• Parties: ABRAHAM STEWARTv.RALPH V. M. CROES et al.
• Court: Illinois Supreme Court

5 Gilman 442

10 Ill. 442

1849 WL 4211 (Ill.)

ABRAHAM STEWART

v.RALPH

v. M. CROES et al.

Supreme Court of Illinois.

June Term, 1849.

BILL IN CHANCERY to set aside a sheriff's sale of land on execution, etc., filed by the appellant against the appellees, in the Kane circuit court, and heard before the Hon. John D. Caton, at the August term, 1847, upon a demurrer to the bill for want of equity, when the demurrer was sustained and the bill dismissed.

The material allegations of the bill are set forth in the opinion of the court.

B. F. FRIDLEY, for the appellant, stated the allegations of the bill, and contended that the irregularities complained of were sufficient to vacate the sale. In support of his position, he cited Day v. Graham, 1 Gilm. 441; Graham v. Day, 4 do. 389; Goff v. Jones, 6 Wend. 522; Read v. Carter, 3 Blackf. 376; Tiernan v. Wilson, 6 Johns. Ch. R. 411, and the cases there cited; Rev. Stat. 302, § 10.

E. PECK, for the appellees, insisted that there was no sufficient allegation in the bill that the land was susceptible of division, and as to the other matters alleged as irregularities, the purchaser was protected by the proviso of the statute. Rev. Stat. 302, § 11.

The Opinion of the Court was delivered by TRUMBULL, J.

Stewart, on the 19th of July, 1847, filed his bill in chancery against Jesse T. Dutcher and R. V. M. Croes, setting forth that Dutcher, at the April term, 1845, of the circuit court of Kane county, recovered a judgment against him for twenty-one dollars and ninety-three cents debt, and costs of suit amounting to five dollars and fifty-six cents; that execution issued upon said judgment, and was levied by the sheriff of Kane county upon a tract of land belonging to complainant, and containing fifty-seven acres and seventeen-hundredths of an acre, described by metes and bounds; that said land was sold en masse, December 13, 1845, to Croes, who was the attorney for Dutcher, for thirty-three dollars and fifty cents; that it lay within a short distance of the village of St. Charles, was susceptible of division, well improved, and of the value of at least $1000 at the time of filing the bill; that the sheriff had been guilty of various irregularities in the sale of the land, such as a failure to return the execution or to file a certificate of sale with the recorder; that no notice was given of the sale on the day it took place; that complainant resided in McHenry county at the time the judgment was obtained against him, and until some time after the sale of the land; that in June, 1845, he sent the money by one Thomas Stewart to pay the full amount of the judgment and costs,...