Jenkins v. Merriweather

Mr. Justice Walker delivered the opinion of the Court: On the 24th day of July, 1874, appellee, Merriweather, obtained a judgment in the Superior Court of Cook county, against Samuel J. Walker, for $19,645.33. Afterwards, on the 11th day of the next September, an execution was issued upon the judgment, and placed in the hands of the sheriff, which was returned on the 16th day of February, 1875, indorsed “no property found.” An alias execution was issued on the 1st day of July, 1881, and it was returned on the 14th day of the following September, indorsed “in no part satisfied,” but there was attached to it a paper, in which the sheriff, by his deputy, stated that he had, by virtue of the annexed execution, (describing it,) on the 23d of July, 1881, levied upon all the right, title and interest of the defendant, Samuel J. Walker, in and to a large number of lots and tracts of land, (describing them,)—and to this return is the signature of the sheriff, by his deputy. On the day last named, a venditioni exponas, in the usual form, was issued, which was indorsed by the clerk that the judgment had been assigned to William C. Eitchie on the 23d of July, 1881. The sheriff afterwards returned the writ, indorsed that he had sold the lands to the amount of $21,000, and after deducting his fees it satisfied the judgment to the sum of $20,640, which he paid to Eitchie, and it was unsatisfied as to' the balance. The time having expired for a redemption, and none having been made, the sheriff executed a deed to Eitchie, who filed an affidavit, on the trial of this motion, stating that he had sold portions of the land and conveyed the same to other persons. Walker was declared a bankrupt on the 26th of April, 1878, and conveyed his property to Bobert E. Jenkins, his assignee, on July 31, 1878. To the former execution, of which no exceptions are taken, Jenkins, on the 29th of August, 1883, filed in the Superior Court a motion to quash the venditioni exponas, and the motion was continued until the next September term, at which time it was heard and denied. An appeal was taken to the Appellate Court for the First District, where the judgment of the Superior Court was affirmed, and the record is brought to this court, and a reversal is urged. The first question presented, and the only one we deem necessary to consider, is, whether after a sale under execution, and the time for redemption has expired, and the sheriff has made a deed to the purchaser, the execution, levy, sale and deed can be set aside, on motion,—or, if there are grounds for setting them aside, must .the parties in such case resort to a bill in equity for relief. Courts of record exercise the power to control their process as long as the proceeding is in fieri. This was the common law practice, which has always prevailed in the courts of this State. Under that practice the court may, on proper grounds, withdraw and quash executions and other writs, and no doubt set aside sales of real estate before they have ripened into titles; but it has never been the practice, on motion, in this jurisdiction, to set aside deeds or divest title when the sale has ripened into a deed and the title has vested, and all antecedent writs and process have performed their functions and have become functus officio. After a deed for real estate, under a sale on execution, has been made, it must be impeached, if at all, in equity, unless there was no judgment or execution, or the court had no jurisdiction to render the judgment. Such a motion as this is not provided for in the 65th section of the Practice act. That refers to writs of execution, replevin bonds, and the like. In the case of Day v. Graham, 1 Gilm. 435, it was said, after reviewing many authorities on the question of the practice of setting aside such sales, on motion: “We are of opinion that when the plaintiff in the execution is the purchaser, and before he conveys to another, the court would set aside the sale, on motion; but after he conveys to a third person, and when a third person becomes a purchaser, the court will not determine, in this summary way, questions which may affect the rights of others not before the court, and without opportunity of explaining away the circumstances which might destroy his title. Although the purchaser here was the attorney, and will be chargeable with notice of all irregularities, if any, yet he is a third person, and did not purchase as an attorney, but in his own right. ” That case clearly governs this. In that case the attorney purchased, and yet the court held that his purchase could not be set aside, and his deed from the sheriff could not be vacated, on motion. Here an assignee of the judgment, after the levy was made, was the purchaser, and not only so, but he had sold portions of the property to other persons after receiving his deed from the sheriff. So this case is stronger in favor of the decision refusing to set aside this sale, than was that. This disposes of the case. Under more recent decisions we should not incline to go the length, even between the parties to the suit, of setting aside a sheriff’s deed, on motion. The judgment of the Appellate Court is affirmed. Judgment affirmed.