Phelps v. Conover

Breese, J. Our statute provides, that when any property, real or personal, shall be taken in execution, if such property be susceptible of division, it shall be sold in such quantities as may be necessary to satisfy the execution and costs. (Scates’ Comp. 604.) It appears from the record in this case, that the several tracts of land levied on and sold by the sheriff, were situate in different townships and ranges, and for the most part wholly disconnected. It also appears that the sheriff offered the lands for sale in tracts of forty acres each, being the lowest legal subdivision, and there being no bidders, he again offered them for sale in a lump, on the same day, when they were struck off to the plaintiff in the execution for a sum exceeding one-third of their real value by a few hundred dollars. A motion was made in due time, on notice, in the court out of which the execution issued, to set aside the sale for this irregularity, which was allowed, and this appeal taken. We have considered the several grounds assumed by the appellant for the reversal of this judgment, but do not deem any of them tenable. It is true, the presumption of law is that a public officer does his duty — that a sheriff in making a sale of property obeys the law, but the presumption can be rebutted by proof that he failed in his duty, as in this case. The proof is that he sold all the lands in a mass, whilst the law says he shall sell in parcels if practicable. It is answered to this, that the sheriff offered the lands in parcels, and they would not sell. In Cowles v. Underwood, 16 Ill. 24, this court said, if lands are offered in separate tracts, and no bids obtained, there may be cases where the officer would be justified in offering different parcels together, although, ordinarily, it would be more proper to adjourn the sale. As to the sufficiency of the notice of the motion, as the appellant appeared to it in the court below, without making any objection, it is too late now to urge it was not seasonable. This court has uniformly decided, where it shall appear that lands or lots which could be divided and sold in parcels, shall be sold in a mass, such sale is irregular and will be set aside. Day et al. v. Graham, 1 Gilm. 435; Same, 4 ib. 387 ; Ross v. Wead, 5 ib. 171; Stewart v. Gay, 5 ib. 442. The case of Greenup v. Stoker, 12 Ill. 24, is no exception to this ruling, for in that case there was but a single quarter section of land sold, and no allegation in the bill or proof, that it could have been advantageously divided, or that any subdivision of it would have satisfied the execution if sold. Where a farm is composed of several adjoining tracts of land, it would be the duty of the officer to offer each tract separately, using his own judgment as to the subdivision, and if the smallest subdivision will not sell, then add another subdivision to it, and so on until it has been offered in subdivisions, when, not selling, it would be but just to the creditor to sell it on a reasonable bid, en masse, the officer making a full return of all the facts. So in this case, after offering the land in forties in one township and range unsuccessfully, the sheriff should have offered it in eighties, and failing in bids, he would then be justified in offering a larger quantity, for it is the creditor’s right to insist upon a sale, and if it is sold under its value, our redemption laws step in to the relief of the debtor. After thus disposing of the lands in one township, he should have proceeded in the same way as to the lands in the other townships, making a full return of all the facts. The officer should judge for himself, in the exercise of a sound discretion, as to the propriety of adjourning the sale. In many cases it would be expedient to do so, where no bidders, but the plaintiff in the execution, or his attorney, appears, unless the plaintiff proposes to bid on each subdivision, until he has bid the amount of his judgment.. No injury can result to the debtor from pursuing this course, even if each subdivision is sold at one-half or less of its value, for the right of redemption to each tract exists, and there is no possibility of injury. While on the one hand, the plaintiff in execution has the right to demand a sale, so on the other, the debtor has a right to insist that it shall be so conducted that he shall not be needlessly and irreparably injured. Among these lands thus sold, were several forties in section nineteen, on which the defendant in the execution lived with his family, and cultivated as his farm — it was his homestead.- The act of 1851, (Scates’ Comp. 576, known as the Homestead Exemption act,) saved this property from the execution to the extent of one thousand dollars in value. But it was included in the sale by the sheriff, and it is now insisted that the debt for which the judgment was obtained and execution issued, was a liability or debt incurred in the purchase of these lands. The facts are, that the defendant in the execution, had purchased these lands of one Close on a credit, executing his notes for the purchase money. Close sold these notes to one Robison, and Robison adjusted the claim with the defendant, and took a note to himself, which he assigned to the plaintiff, on which the judgment was obtained. The second section of the Homestead act was intended in our judgment, to protect the vendor’s lien. When he sold the note to Robison, and Robison gave it up to the maker, taking a new note, he must be considered as having given up his lien. We see no error in the ruling of the Circuit Court, and therefore affirm its judgment.