Lurton v. Rodgers

Mr. Justice Craig delivered the opinion of the Court s The evidence as to the value of the property in question at the time it was sold on execution clearly preponderates in favor of the complainant. Seven witnesses were examined as to the value of the property, in behalf of complainant. One placed the value at $3000, one at from $2800 to $3000, two at from $2500 to $3000, one at from $2500 to $2800, one at $2750, and one at $2200, the average of their estimates being a little over $2700. Three witnesses only testified for the defendants, one placing the value at $1500, one at $1300, and ■one at $1200. It is therefore plain that the circuit court was ■fully justified in adopting the value placed upon the property by complainant’s witnesses, and we will presume, in support ■of the decree, that it did so. It must therefore be regarded as •established, for all the purposes of this appeal, that the property, at the time of the sale, was worth at least $2700, and ■upon that basis the value of complainant’s equity of redemption, after deducting the amount of the mortgage on the property and all accrued interest, was at least $2000. An interest of that value having been sold on the execution for only $60, no argument is required to show that the price for which the property sold was grossly inadequate. It is true that mere inadequacy of price will not ordinarily be held sufficient, of itself, to set aside a sheriff’s sale, yet it may be considered in ■connection with other irregularities in the proceedings, and where the inadequacy is great, the sale may be set aside upon •slight additional circumstances. Beam v. Heffendorf, 84 Ky. 685; Wright v. Deck, 116 Ind. 538; Thomas v. Hebenstreit, 68 Ill. 115; Dickerman v. Burgess, 20 id. 266; Dutcher v. Leake, 44 id. 400. Several irregularities in the transcript and'the sheriff’s sale have been pointed out and relied upon in the argument of •counsel, but in the view we take of the record it will only be necessary to consider one question. The property involved, which was sold on execution, is described as follows: Forty feet off the south side of lots 40, 41 and 42, original plat of Jacksonville. The property has a west frontage of forty feet on Mauvaisterre street, running back east one hundred and eighty feet, with an alley on the south and the east. It consists, as shown by the evidence, of two business lots, twenty feet front and one hundred and eighty feet deep. The north twenty feet was vacant, but on the south twenty feet a brick business house had been erected, two stories high, twenty by sixty feet. The property was located only a half block north from the north-east corner of the public square in Jacksonville. The sheriff levied on the property as a single tract, and it was sold en masse, and struck off for the sum of $60, in plain violation of section 12, chapter 77, of the Revised Statutes of 1874, which reads as follows: “When real or personal property is taken in execution, if the same is susceptible of division it shall be sold in separate tracts, lots or articles, and only so much shall be sold as is necessary to satisfy the execution and costs.” Here, the property was susceptible of division, and was regarded, as the evidence shows, as two business lots. There was, it is true, an old frame building on the east end of the property, in the rear of the brick building, extending from the south to the north line of the property, used as a warehouse, but this did not prevent a division of the property into two lots or parcels of land. Where property susceptible of division has been sold en masse for an inadequate price, this court has held, in a number of •cases, that the sale will be set aside, if application is made within a reasonable time. (Morris v. Robey, 73 Ill. 462; Berry v. Lovi, 107 id. 612; Stoker v. Greenup, 18 id. 28; Day v. Graham, 1 Gilm. 435.) In Morris v. Robey, in deciding the case, it is said: “Although inadequacy of price on an execution sale may be no ground for equitable relief without additional circumstances to justify it, we are of opinion that such additional circumstances do exist in the present case, and that they are to be found in the irregular mode of selling these eight separate lots in gross without having first offered them in parcels of two and more, less than the whole.” What was said in the case cited is applicable here. Property capable of division, worth $2000 clear of incumbrances, was sold en masse for the paltry sum of $60. We are aware of no principle upon which a sale of this character can be sustained. The sheriff had no right to sacrifice the property if it could be avoided, and it is apparent that the way was ■open to avoid a sacrifice of the property by offering it for sale in parcels. If the north half, twenty feet front by one hundred and eighty feet deep, had been offered for sale, doubtless-' it would have sold for the debt and costs; but whether it would; or not, the law required the sheriff to first offer the land iru parcels before he could be justified in selling it en masse. But it is said that the complainant has been guilty of laches and upon that ground equity will not grant him relief. The-property was sold on the execution on the 25th day of June,-1887, and the time for redemption expired on the 25th day off September, 1888, and this bill to vacate the sale and redeem,was brought July 15, 1889, less than ten months from the time allowed by law for redemption. It is true, as a general rule, where a party desires to make application to set aside a • sheriff’s sale he ought to do so before the time of redemption expires; but in this case the application is not one strictly to ■ set aside a sale, but the bill prays for leave to redeem from the sale, and the court, as it was proper to do, granted the-relief upon equitable terms, which seems to be in harmony with the former decisions of this court. Thus, in Stoker v. Greenup, 18 Ill. 27, a bill was filed to set aside a sale of land on execution, setting out facts similar to those relied upon here. The court refused to vacate the sale absolutely, but. allowed an equitable redemption, as prayed for here. It is there said: “But Stoker for some three years slept on his-rights, neither redeeming .the land by paying the paltry sunnrequired for that purpose, nor attempting to avoid the sale-. Equity favors vigilance, and will not encourage the litigious,inclinations of individuals. Stoker must be ready to do equity when he invokes it in his behalf, and we feel not only justified, but required, under all the circumstances in this case, to grant the relief prayed, upon terms equitable in themselves, etc. The decree is reversed, and the cause remanded with directions to set aside the sale,” etc. There was no such delay in this case as there was in the-case cited, where a redemption was allowed. But the delay of the complainant is not without explanation. He testified that he had a conversation with Lurton in November, 1887, and that he told him he would pay the debt as soon as he got" work. He said, “All right, ” and drove off. “I did not then know that the property had been sold. I went to Missouri in March, 1888, and came back in January, 1889, I first heard of the sale in December, 1888, in St. Louis. I had been gone since March, 1888. I saw him soon after my return, and told him I thought he had taken an advantage of me, and I was willing to pay him for his trouble. He said he could do nothing, as his wife had the deed. I asked him to see her, if she would do something. He turned and walked away. I offered to pay him for his trouble, and all that he had on it. He said he would see about it,—he could do nothing,—and walked away, and that was the last I saw of him. ” This was denied by Lurton, but both parties testified in person before the court, and the court had an opportunity to see the witnesses and judge of their relative credibility, and we will presume from the findings in the decree that the court gave credit to complainant’s testimony on this question. If the facts were as testified by the complainant there was no such delay as would preclude a recovery. As respects Mrs. Lurton, it sufficiently appears from the evidence that she took title to the premises in question from her husband, with notice of the irregularities in the proceedings and of complainant’s rights, and we are of opinion that the right of redemption was properly decreed as against her. The decree of the circuit court will be affirmed. Decree affirmed.