Greenup v. Stoker

12 Ill. 24

Opinion

Caton, J.

This bill was filed to set aside the sale under an execution, principally for the reason, that an entire quarter section of land was sold in one tract, instead of being offered in parcels. But the bill docs not show by circumstances, nor does it even aver, that the tract was susceptible of division, or that it might have been' more advantageously sold in separate parcels. It is no doubt true, that it might have been divided; and so might any tract or parcel of land, no matter how small or insignificant it may be. But the law requires something more "than this. Some probability of advantage ought to be shown, before we can say that a tract of this size, and situated as this was, cannot be legally sold upon execution, without a division. The Court may infer where a large tract is to be sold, or where separate parcels are levied upon, that a sale might be made to better advantage, in smaller quantities or in separate parcels; but we cannot say that the sale of a quarter section of wild land should be set aside, for the sole reason that it was not divided and sold in separate parcels, although it was sold at a great sacrifice. In such a case, very strong proof of the probable advantage of a division into parcels might not be required; but something tangible and reliable should be shown, to induce the opinion, that a sale in smaller quantities would have been more appropriate. If it was susceptible of an advantageous division, that fact could easily have been shown, or at least witnesses might have been found who would have expressed that opinion. Here no man has ventured the opinion, not even the complainant himself, that there would have been any propriety in offering the quarter section in separate parcels. Although it would ordinarily be advisable, for officers to sell in smaller quantities, yet we are not prepared to say, that an entire quarter section of land, which has been levied upon and designated as one tract, cannot legally be sold without a division. It might require much less evidence to persuade the Court that the land was injudiciously offered, where there has been an enormous sacrifice, as in this case, than where the property sold for a fair price. But we are not aware of any case, where mere inadequacy of price, has been held sufficient to set aside a sale, if it was conducted fairly and judiciously.

Another objection was taken upon the argument. And that is, that the coroner had no authority to make the sale. But the bill is not framed with a view to obtaining relief upon that ground. The coroner was authorized to act as sheriff, in case of a vacancy in that office, and there is no averment in the bill that there was a sheriff, nor is it even averred in any way, that the coroner was not authorized to make the sale. Att’y G-en’l v. The Mayor of Norwich, 2 Mylne & Craig, 407, (14 Eng. Ch. Reports.)

At any rate, it was insisted, that the coroner could not go on and complete the execution of a process, which had been directed to, and partly executed by the sheriff, before the vacancy occurred. By Chap. 99, Sec. 18, of R. S., it is provided, “In case of a vacancy in the office of sheriff, by death, resignation, removal, or otherwise, the coroner shall do and perform all the duties pertaining to the office of sheriff,” &c. We think by a fair construction of this statute, the coroner may go on and finish the execution of process directed to the sheriff, the same as a new sheriff might, who succeeds the old one, by an election.

The decree of the Circuit Court must be reversed with costs, and the suit remanded, with leave to the complainant to amend his bill, and for further proceedings.

Judgment reversed,.