Wilkinson v. Cox

Mr. Chief Justice Hand delivered the opinion of the court: A motion was made in this case for a rule upon plaintiff in error to give security for costs as a non-resident, and for an order of dismissal against the plaintiff in error upon her failure to comply with such rule. A motion to rule a non-resident plaintiff in error to give security for costs is a dilatory motion, and should be made at the earliest moment at which it can be made. This motion was not made until after the case had been taken upon the regular call of the docket. It therefore came too late. The validity of the sales made by the sheriff under said fee bills is attacked.upon the grounds that the premises were sold en masse; that the sales were made at a grossly inadequate price, and that no demand was made upon Ruth Wixon for the payment of the costs mentioned in said fee bills prior to the time they were levied upon said lots and sales made thereunder to James B. Cox. It appears from the undisputed evidence that property worth from $4000 to $5000 was sold en masse for $103.55 and property worth $5000 was sold en masse for $117.04. While mere inadequacy of price bid for lands sold subject to redemption will not, of itself, constitute ground for equitable interference, yet where the inadequacy is gross, the property is sold en masse, and the requirements of the statute designed for the protection of the owners of the property have not been observed, the sale will be set aside. (Henderson v. Kibbie, 211 Ill. 556.) Section 28 of the Cost act (Hurd’s Stat. 1905, p. 557,) provides that where a fee bill shall come into the hands of a sheriff he shall demand payment from the person therein charged, and if payment shall not be made accordingly within thirty days after such demand, the sheriff shall levy the same on the goods and chattels, lands and tenements of the person so chargeable and proceed therein iff all things as on a writ of fieri facias. In Henderson v. Kibbie, supra, it was held that said section 28 of the Cost act does not authorize the levy of a fee bill upon lands unless payment of the fee bill shall not be made within thirty days after demand for payment. We think it clear that said sales, by reason of the grossly inadequate price at which the lots were sold en masse and for want of proper demand for payment of said fee bills, before levies were made, upon Ruth Wixon, rendered said sales void, and that they should have been set aside as clouds upon plaintiff in error’s title as against James B. Cox, the purchaser at said sales. We also think that such sales were void as against James R. Smiley and Cornelius J. Ton. Mrs. Wixon or the complainant were in the continuous possession of the said lots, through their tenants, from the time said fee bills became liens thereon until this suit was brought, and by reason of their possession Smiley and Ton had notice of their rights, if any, in said premises, and had they made inquiry of them they would have been advised that said fee bills had been levied upon said premises and said lots sold without any previous demand of payment having been made upon either Mrs. Wixon or the complainant. It is also clear that by reason of their possession laches cannot be imputed to them. The sales having been made en masse for an inadequate consideration and without previous demand for payment were void, and they should be set aside without requiring the plaintiff in error to pay and satisfy said fee bills. Conwell v. Watkins, 71 Ill. 488. The decree of the superior court will be reversed and the cause remanded to that court, with directions to enter a decree in accordance with the prayer of the bill. Reversed and remanded, with directions.