McLean County Bank v. Flagg

Mr. JustiCE WALKBR delivered the opinion of the Court. The execution under which the sale was made, was levied upon seven town lots, which were separately offered and sold to plaintiff in execution. The evidence discloses the fact, that on three of them, lying contiguous to each other, a large three-story machine shop had been erected, one hundred and sixty feet in length. In this building, at the time of the sale, there was in use a large quantity of machinery, employed in the various departments of the manufacture of reapers, which was driven by an engine, situated at one end of the building. Another building, two stories high, was situated on two other lots. This latter building was used as a shop, and for storing machines. A third building is on two other lots, but is not disconnected at the line between them. The purchase under the execution was made, by the plaintiff’s attorney of record, on separate bids on each lot, amounting, in the aggregate, to the sum of $1,425, whilst the evidence strongly tends to show that the property was worth near thirty thousand dollars. The purchaser was the president of the bank, who owned all of the stock, and who paid nothing on the purchase. Is such a sale warranted under an execution ? May property Undivided, worth thirty thousand dollars, be sold in such portions as to render it worth but two thousand ? The tenth section of act regulating sales on executions at law 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 such execution and costs.” "Was this property susceptible of a division, in the mode adopted by the officer conducting this sale? It manifestly was not, without great prejudice to the owner. This statutory provision, was not designed to authorize the sheriff to divide entire parcels of real or personal property, in such a mode as to become oppressive, or injurious to the parties. It was to require him, to so divide the property as to satisfy the judgment and costs, and at the same time produce the largest price. And he is only authorized to do so, when the property is susceptible of division, without injury. Many articles of personal property are not capable of division, without its total destruction for the use for which it was designed, yet the material separated, as such, would be amply sufficient to pay the debt and costs. In the adoption of such a mode, injury might result to an extent many fold greater than the debt. Such a course would produce one of the injuries designed to be prevented by this enactment. It is the manifest duty of the officer, to so sell the property as to produce the largest price, and the least injury to the debtor. If that can be done by a division, such a course should be adopted; but if the sale of the entire property would produce that result, it should not be divided. When the articles of property, or the tracts of land, are several, then the sale should be several. But when different tracts of land have become one, by extending a building over portions of all, they, by the use to which they have been appropriated, lose their former several character. The' buildings in this case, extending over several lots, for the purpose of enjoyment by the owner, became entire, and virtually obliterated the lines separating them. The three lots occupied by the large machine shop were not capable of division without great injury ?»n¿ Nss to the owner. They could only have been offered one tract and at one bidding. And so of the other lots upon which buildings were situated. The sale of the property in the mode adopted, was an abuse of the process of the court, and required the sale to be set aside. The power over its own process, is t «cssessed by all courts. Such power is a species of equifcabb. jurisdiction, that is inherent in courts of law, as well as those of equity. This court has repeatedly held, as between the purchaser and the original parties to the suit, that a court of law will not hesitate to exercise the power of setting aside a sale on account of fraud, or irregularity. In this case the purchase was made by the attorney of record, and who was the beneficial plaintiff in the case. And he must be held liable for all irregularities in the sale. The judgment of the court below is affirmed. Judgment affirmed.