Cohen v. Menard

31 Ill. App. 503, 1889 Ill. App. LEXIS 41

Opinion

Phillips, J.

Where a claim is filed and allowed against an estate, it becomes a judgment. The judgment creditor may, under Sec. 27, Chap. 77, Starr & C. Ill. Stat., for purpose of redemption and sale, have execution. The execution must follow the judgment, and to include two separate and distinct claims as two several judgments in one execution as one judgmont for amount of both claims, renders the execution fatally defective for variance from the judgment. The sale of three parcels of land, aggregating more than three hundred acres, where one of these parcels was widely separated from the other two, en masse, after first offering them as separate tracts and no bid, but without offering two of the tracts, must be held sufficient to authorize this decree to set aside this sale. It was the duty of the sheriff, after offering the tracts separately, if there was no bid, to offer two of the tracts, for which he might obtain a bid, without resorting to the extremity of a sale in gross. Phelps v. Conover, 25 Ill. 309; Morris et al. v. Robey, 73 Ill. 462; Douthitt v. Kettle, 104 Ill. 356; Cowen v. Underwood, 16 Ill. 22; Ballanee v. Loomis et al., 22 Ill. 82.

The evidence shows the land was sold for much less than it was worth, and the manner of the attempted redemption and sale would have created a cloud on complainant’s title. The decree gave the appellant all he was entitled to, and is sustained by the evidence, and is affirmed.

Decree affirmed.