Thomas v. Hebenstreit
| Citation | 68 Ill. 115,1873 WL 8288 |
| Parties | CHARLES W. THOMASv.VALENTINE HEBENSTREIT. |
| Decision Date | 30 June 1873 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Clinton county; the Hon. SILAS L. BRYAN, Judge, presiding.
Mr. CHARLES W. THOMAS, pro se.Mr. WM. WINKELMAN, for the appellee.
This was a bill in chancery, filed in the circuit court of Clinton county, by Valentine Hebenstreit against Charles W. Thomas, to set aside a judgment, and also to set aside a sale of land made by the sheriff of Clinton county, on an execution issued on the judgment.
The evidence in this case shows, as appears from the record, that on the 18th day of February, 1868, Thomas recovered a judgment against Hebenstreit before a police magistrate, in Belleville, St. Clair county, for $30 and costs of suit; that on the 15th of April, 1868, an execution was issued and delivered to a constable of St. Clair county to collect, which was returned by the constable April 29, 1868, no property found; that on the 10th day of June, 1868, a transcript of the judgment was filed in the office of the clerk of the circuit court of St. Clair county, recorded, and execution was issued to the sheriff of Clinton county; that the sheriff of Clinton, by virtue of the execution, levied, July 15, 1868, on N. W. qr. of S. W. qr. of sec. 8, T. 1 S., R. 5 W., advertised, and on the 5th of September, 1868, sold the land to Charles W. Thomas for $51.86. The sheriff, after making the sale, filed a certificate of purchase, which showed sale of land to Thomas on 5th of September, 1868, by virtue of an execution out of Clinton circuit court dated 18 th day of February, A. D. 1868, on a judgment in favor of Thomas v. Hebenstreit, at _____ term of Clinton circuit court.
Thomas, on the 19th day of February, 1870, obtained a deed on this certificate of sale, and on the 15th of May, 1871, commenced an action of forcible detainer before a justice of the peace of Clinton county, to recover possession of the land.
The evidence also shows that the complainant lived in Clinton county, but did business in St. Clair; that at the time the constable held the execution, he had $2000 worth of personal property, and was as often as once a week in Belleville, where the constable resided, with personal property enough to satisfy the execution; that the constable made no demand for property; that the land sold on execution was worth $2000. Complainant had no knowledge of the sale of the land until Thomas had obtained a deed and demanded possession. The day after he learned of the sale and deed to Thomas, he went to him and offered to pay the amount he had expended in the purchase of the land. Thomas refused this, but proposed to sell him the land for $225.
The evidence also shows that the sheriff of Clinton county filed no certificate of levy when he levied on the land, or at any time. On the trial of this case in the circuit court, a decree was rendered that the complainant should, within one hundred days, pay the defendant $51.86, and six per cent interest thereon from September 5, 1868. That upon the payment of the money the defendant should convey the land, and that the defendant should pay the costs.
The defendant brings the case to this court by appeal.
The main question in this case is as to the validity of the sale of land made by the sheriff of Clinton county, and in order to determine that question, it is necessary to examine the statute and see if its provisions have been complied with.
One provision of our statute requires a sheriff, who receives an execution from a foreign county,...
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