Watt v. Mcgalliard

• Decision Date: 31 January 1873
• Citation: 1873 WL 8250,67 Ill. 513
• Parties: THOMAS WATT et al.v.WILLIAM MCGALLIARD et al.
• Court: Illinois Supreme Court

67 Ill. 513

1873 WL 8250 (Ill.)

THOMAS WATT et al.

v.WILLIAM MCGALLIARD et al.

Supreme Court of Illinois.

January Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Logan county; the Hon. THOMAS F. TIPTON, Judge, presiding.

This was a bill in chancery, by Thomas Watt and Sarah Watt, his wife, Joseph M. Taylor, William P. Taylor, Henry C. Taylor, Isabella J. Weeks, and her husband, John Weeks, David A. Taylor, Eliza A. Taylor, Thomas Taylor, Noland Taylor, Virginia Taylor, Luella Taylor, Laura Taylor and Peter Taylor, as the heirs at law of Peter Taylor, deceased, against William McGalliard, Isaac V. Cunningham, J. J. Vanmeter, Rachel Henrichsen and Jacob Cunningham. The object of the bill, and the facts relied on, are stated in the opinion of the court. The court below, on the hearing, dismissed the bill, and the complainants prosecuted this appeal.

Mr. W. B. JONES, for the appellants.

Messrs. BEASON & BLINN, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The controversy in this case is between the heirs of Peter Taylor, deceased, complainants below, and appellants, and William McGalliard, appellee, and relates to a fractional half-quarter section of land in Logan county, consisting of 141 12/100 acres.

McGalliard's claim of title is by virtue of a deed from a master in chancery, made upon a master's sale of the land in pursuance of a decree in a certain suit in chancery, in the Logan county circuit court, wherein Rachel Henrichsen was complainant, and Isaac V. Cunningham defendant. Peter Taylor, the ancestor of appellants, was a purchaser of the land from Cunningham, the purchase having been made soon after the decree and before the sale by the master.

The bill, in this case, was filed to set aside the master's deed and sale to McGalliard for irregularity in the manner of making it, and have a resale ordered; and if that relief could not be obtained, that the complainants be permitted to redeem the land from the sale.

The first objection to the sale is on account of the notice given of it. It was in two forms--one by posted notices, the other by publication in a newspaper. In the former the notice was, that the sale would be subject to redemption; that in the newspaper stated that the sale would be without redemption. The land was decreed to be sold subject to redemption, and was so sold.

There was no requirement that the notice should state that the sale would be with or without redemption. It is not perceived what harm could have resulted from the particular form of the newspaper notice in this respect. As to its effect in inviting attendance upon the sale, notice that the sale was to take place without redemption would rather have the tendency to attract bidders and increase attendance on the sale, than otherwise.

It is suggested that it might have misled Cunningham, himself, and have induced him not to redeem from the sale. But it is not to be intended that he could have been so misinformed and misled by the notice. It was the decree, and not the notice of sale, which would regulate his rights in this respect, and he must be presumed to have had knowledge of the terms of the decree.

There was another adjoining tract of land of eighty acres, situate in Mason county, which was also embraced in the decree, and which was not sold by Cunningham to Taylor; and the next irregularity insisted upon is, that this eighty-acre tract was not offered for sale by the master. The master might have made the sum due by the decree, out of either tract of land, but as the decree was one of the circuit court of Logan county, and all the parties resided in that county, there were obvious reasons of convenience why the master should have sold the tract in that county rather than the adjoining eighty-acre tract situate in Mason county. There is no evidence that either McGalliard or the master, or Henrichsen, in whose favor the decree was, had any notice of Taylor's purchase from Cunningham of the 141 12/100-acre tract in Logan county. Had there been such notice, there might have been, voluntarily, a resort first to the eighty-acre tract; or, had the rights of Taylor been brought before the court, and due application made for that purpose, the court, doubtless, would have compelled a resort first to the tract in Mason county for the satisfaction of the decree. But it is inadmissible, after the sale has been perfected and the deed executed, and all confirmed by the court, to make now, for the first time, this objection to the sale.

It is objected that the deed, executed by the master to the appellee, recites a sale made by virtue of a decree rendered at the April term, 1865, when the decree, in fact, was rendered at the October term, 1864. This is evidently a mere misrecital of the particular term of the court at which the decree was rendered, and in no way impairs the...