Joy v. Berdell

Walker, J. At the September term, 1858, appellee filed a declaration and notice in ejectment, made proof of service, and obtained the usual rule to plead within twenty days. Defendants filed the general issue, and a trial was subsequently had before the court and a jury, which resulted in a verdict and judgment against appellants. A motion for a new trial was entered and overruled, and this appeal is prosecuted to reverse that judgment. The assignment of errors questions the sufficiency of the deed from Saltonstall to appellee, and is principally relied upon for a reversal. The deed recites that the assignee, after complying with the rules of the District Court, proceeded to sell the lot in controversy at public auction, and that appellee became the purchaser. It also recites that the assignee first gave fourteen days’ notice of the sale by advertising in the “ Chicago American,” a newspaper published in the county of Cook, and likewise by fixing up three notices of such sale, in three of the most public places in the county of Cook, for more than twenty days prior to the sale. It is insisted, that by this latter recital the latter clause of the fifty-first rule in bankruptcy, of the District Court for the State of Illinois, was violated. That rule requires that the assignee shall, in selling real estate of the bankrupt, give at least twenty days’ notice of the time, place and terms of the sale, by fixing up at least three notices; and also by publication in some newspaper nearest to the premises, when in the opinion of the assignee the property is sufficiently valuable to justify the expense of such publication. It will be observed that the first of these clauses imperatively requires the posting up of three notices in the most public places in the county, for at least twenty days, and the recital in the deed shows that this requirement was fulfilled. The other is discretionary with the assignee, and if in his judgment it is not warranted by the value of the property, it may be entirely omitted. Having this discretion to omit altogether the advertisement, we can see no reason to invalidate the deed if the act was only performed in part, by the advertisement for only fourteen days. When we see,that the property only sold for the small sum of three dollars, we may conclude that the discretion would have been well exercised had the advertisement been entirely omitted. When the small value of the property is considered, we can see no harm resulting to any one in exercising a discretion to advertise only fourteen days or to have wholly omitted it. Again, the fifteenth section of the bankrupt act provides, that a copy of the decree of bankruptcy and appointment of the assignee shall be recited in the deed of lands belonging to the bankrupt, sold and conveyed by the assignee under the act. That “ all deeds containing such recital, and supported by such proof, shall be effectual to pass the title of the bankrupt of, in and to the lands therein described, to the purchaser, as fully to all intents and purposes as if made by such bankrupt himself, immediately before such order.” The proof here referred to is declared by this section to be a certified copy of the order declaring the applicant a bankrupt, and the appointment of the commissioner. This language is clear, explicit and comprehensive. It dispenses with proof of advertisements, notices, and other requirements of the law, and the rules of the court. From this provision it is apparent that it was the design of the law makers to dispense with all mere technicalities. If essential requirements have been omitted, or even gross negligence or fraud itself has occurred in conducting the sale, if the deed contains these recitals, and a copy of the decree is produced, under this act, in this proceeding the deed is admissible, unless otherwise defective. If the assignee was guilty of such negligence of duty, or had committed such a fraud as would have invalidated the sale, any creditor of the bankrupt might have had it set aside on motion in the District Court, or obtained the same end by a bill in equity. This deed contains the recital of a copy- of the decree in bankruptcy, and the appointment of the commissioner, and the statute having declared it suEcient. when supported by a copy of the order, its requirements must be obeyed. If accident, mistake or fraud has occurred, equity alone has the power to afford the relief to the proper parties, upon a suEcient case being made. In this case it will be observed, that the declaration was filed and the rule obtained for a plea, on the 16th day of September, 1858. The deed from Saltonstall, the assignee, to appellee, bears date on the 17th day of October, 1859, one year and a month after the suit was docketed. No rule is better or more generally recognized and applied, than that the plaintiff in ejectment must recover on a legal title, and that a mere equitable title will not suffice in such a proceeding. Now, if it were conceded that the sale was made precisely as stated in the deed, and no conveyance had been made, a recovery could not be had until a deed was executed. It is the sale, and a compliance with its terms which vests the equitable title, but it is the conveyance which alone passes the legal title. As the party must succeed or fail on the title he has at the commencement of the suit, and as the deed conveying the legal title bears date after that time, a recovery could not be had. The court below should therefore have given the first and second of appellant’s instructions, as the right to recover was not shown by this deed. The judgment is reversed, and the cause is remanded. Judgment reversed.