Cass County IL Archives Court.....Gibson, John M McConnel V Joshua 1850 ************************************************ Copyright. All rights reserved. http://www.usgwarch.org/copyright.htm http://www.usgwarch.org/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 19, 2008, 8:51 am Source: Reports Of Cases Written: 1850 John M. McConnel, appellant, v. Joshua Gibson et al., appellees. Appeal from Cass. The court will look at the material averments of a bill and from thence determine its true character, and if the averments show that the complainant is entitled to relief, and the prayer will authorize the court to grant the relief which he shows himself entitled to claim, no matter what name is given to the bill. (a) A commissioner in chancery, appointed to sell, cannot become a purchaser at his own sale, either in his own name or in the name of a third person: if he should do so, the sale will be set aside at the instance of the person whose rights have been sold, if the application for that purpose is made within reasonable time. (b) A fiduciary cannot be both seller and buyer at the same time, and a sale under such circumstances may be avoided, but not by the fiduciary. A sale fraudulently made, on a day different from that named in the notice of sale, would furnish ground for setting aside the sale. (c) A bill which seeks to set aside a sale, and an order confirming such sale, upon the ground of fraud, if filed within a reasonable time after the fraud is discovered, is not obnoxious to a demurrer. This was a suit in chancery, brought by Saunders as treasurer of T. 18 N., R. 12 W., of Cass county, against W. W. Babb, and this appellant and others, in the Cass Circuit Court, to foreclose a mortgage given by Babb to one John T. Jones, who was school commissioner of Morgan county. Said mortgage is set out in this record, and is upon a tract of land in T. 15. N., R. 12 W. The appellant was made a party to this suit, and it was charged that Babb, subsequently to the giving of the mortgage to Jones, had given a mortgage to appellant upon the same land. Appellant filed his answer to said bill, and alleged that he had a mortgage given by Babb, and set it out, showing that the land named in his mortgage was in T. 18 N., R. 12 W. The bill filed by Saunders set out the same land described in McConnel's mortgage, and a decree was subsequently rendered in the case to sell the land described in McConnel's mortgage to pay the debt due to Jones, and no notice was taken of the fact that the land mortgaged to Jones was a different tract of land, and did not appear from Jones' mortgage to be situated in Cass county. A final decree to sell said land was made at the May term of the Cass Circuit Court, in 1841, and one Edward Tull was appointed master in chancery to sell said land. At the October term, 1841, Tull reported that he had sold the land to one Lippincott for $950, and paid Jones' debt and costs with the money, but had not made a deed to the purchaser. At the May term, 1843, one Atwater was appointed to complete said sale by making a deed to Lippincott. At the May term, 1845, of said court, Atwater reported that he had completed said sale by the making of a deed, which report was approved by the court, and thus on the nineteenth of May, at said May term, the decree of sale was finally carried into effect, and the suit was ended. On the seventh of March, 1849, McConnel and Babb, two of the original defendants in said cause, filed this bill, called by them a "petition," in the Cass Circuit Court, praying that the orders of the court, approving the making of the sale and of the deed, be reviewed, and that they be set aside for the following causes: First. Said petitioners, long after the nineteenth of May, 1845, and not before, ascertained that said Tull, who had been appointed by the court to sell said land, had fraudulently and falsely reported to the court that he had advertised said land in the nearest newspaper, and had sold it to Lippincott on the twenty-seventh of September, 1841, as the highest bidder; when, in fact, Tull was himself secretly the purchaser, and knocked it down to Lippincott fraudulently, and that the land was advertised in a paper out of the county, fifty-five miles distant, when there was a nearer paper, twenty- five miles distant; and that no money was paid for the land. Second. The land was sacrificed at the sale by Tull, which was made at a different time and place than that specified in the notice of sale. That these facts were unknown at the time, and have been recently discovered. The defendants severed in their defense, some of whom demurred, one moved to dismiss, and another pleaded that more than five years had elapsed between the final decree and the filing of the petition. The Circuit Court, Woodson, Judge, presiding, at March term, 1860, dismissed the bill. M. McConnel, for appellant: This petition should be regarded as an original bill in the nature of a bill of review, impeaching the order of the court affirming the sale and deed, for fraud, which bill may be filed without leave of the court: Story's Pleading in Equity, p. 340, sec. 426, and note 2, also p. 342, sec. 428. The limitation fixed as to the time for suing out a writ of error, has no application to this case. This bill is not filed to reverse the order of the court, for anything apparent of record: Story's Pl. in Equity, p. 325, sec. 410, and pp. 583-4, sec. 575. also p. 591, sec. 784; Hawley v. Cramer, 4 Cowen, p. 718; Coxe v. Smith, 4 John. Ch. Rep., 271; Harrison, admr., etc., v. Picket, 2 Hill, 353. The allegations of the bill being, that the officer of the court of chancery had been guilty of fraud in the sale of the land, and had become the purchaser at his own sale, at a reduced price, to the injury of defendant Babb, who owned the land, and of McConnel, a mortgagee, the facts not coming to their knowledge until the filing of this bill; and all these allegations being admitted by the pleadings, the bill should not have been dismissed, but the sale should have been set aside: 4 Cowen's Rep., p. 781; 5 U. S. Cond. Rep., 142; 3 Gilman's Rep., 2; Story's Pl. in Equity, p. 625, sec. 815. Wm. Thomas, for appellees. Caton, J. We must look at the substance of this bill, and the grounds of equity set up in it, to determine its true character. It commences in the form of a petition, but subsequently assumes the form and substance of an original bill, or of a bill of review, and is by the pleader sometimes called one thing, and sometimes another; but we must look at the material averments of the bill and from them determine its true character. Although the pleader may have given it a wrong name, still, if the averments show that the complainant is entitled to relief, and the prayer will admit of our granting that which he shows himself entitled to claim, he ought not to be turned out of court unheard. Although many of the supposed irregularities in the sale and report may be quite unimportant, so far as the validity of the sale is concerned, yet some of the facts stated in the bill are of a more serious character, and, if true, must vitiate the sale anil consequently the order of the court confirming the report of that sale. The bill states substantially that Tull, the commissioner, was in fact the purchaser at his own sale. That, although Lippincott was the ostensible purchaser, in fact he purchased not for his own benefit, but for that of Tull. This, if true, was a fraud in law, and will avoid the sale, at the instance of the party whose property was sold or of one holding under him, if their remedy is sought within a reasonable time after the fraud is discovered. The law will not allow a man, who acts in a fiduciary capacity, to be both buyer and seller at the same time. It is true that such a sale is not absolutely void, for it may be confirmed by the party whose interest is affected or title transferred, by such sale; and this acquiescence may undoubtedly be presumed by the absence of any complaint for an unreasonable length of time after the mode of sale is known. The purchaser cannot avoid the sale, for he shall not be allowed to complain of his own fraud or misconduct. These principles are too familiar to require authority for their support. There is a charge also, that the sale was fraudulently made on a day dlfferent from that stated in the notice, and different from the time stated in the report. If these things were done for a fraudulent purpose, then they would afford sufficient ground for setting aside the sale and vacating the order confirming the report. The true object of this bill is to set aside the sale, and to review, reverse and vacate the order of the court confirming the report of the sale, whereby the final sanction of the court was given to the sale. This is asked upon the ground of fraud. The bill shows that a fraud was practiced upon those interested in the mortgaged premises, and upon the court, which, had it been known to the court at the time, would have prevented that court from making the order approving the report of the sale, and would have induced the court to have set it aside. This bill comes precisely within the definition of an original bill in the nature of a bill of review, as laid down by this court in the case of Gregg et al. v. Gear, 3 Gilman, 2; and in Story's Eq. Pl., sec. 426. The bill was filed in a reasonable time after the fraud was discovered. It was therefore not obnoxious to the demurrer. The same relief substantially might, and undoubtedly would have been, obtained by a purely original bill, setting forth the fraud, and seeking to set aside the sale alone, without asking to have the final order of the court approving of the report and confirming the sale, to be reviewed and reversed; for a decree setting aside the sale would necessarily have destroyed the effect of that final order. The difference between such a bill and the one before us, is only nominal when founded upon such facts as are stated here. The authorities above referred to, show that the leave of the court was not necessary to file the bill. It should not therefore have been dismissed for that reason. So of the objection as to parties. The bill shows that all who could have had any interest adverse to the relief sought, or, indeed, in the question at all, were brought in. The decree of the Circuit Court is reversed, with costs, and the suit remanded, with leave to the defendants to answer to the merits of the bill. Decree reversed. ---------------------- (a) Thomas v. Hebenstreit, 68 Ill., 115, accord. (b) As a general rule, a person, acting in a fiduciary capacity, cannot be permitted to purchase property at his own sale: Lockwood v. Mills, 39 Ill., (annotated edition), 609, and note; Miles v. Wheeler, 43 Ill., (annotated edition), 128, and note. (c) In the absence of fraud, a judicial sale made upon a day different from that given in the notice renders the sale voidable only. Proceedings to set aside such a sale must be begun in apt time: Trustees v. Snell, 19 Ill., 156; Hamilton v. Lubukee, 51 Ill., 415; Jackson v. Spink, 59 Ill., 401, and cases cited; Osgood v. Blackmore, 59 Ill., 261. But such sales are not voidable as against innocent purchasers having no notice of irregularities: Conover v. Musgrove, 68 Ill., 58; Fairman v. Peck, 87 Ill., 186, and cases cited. See Hay v. Baugh, 77 Ill., 500. As to the question of fraudulent sale, see Hays v. Cornell, 80 Ill., 54, which follows the principal case. Additional Comments: Reports of Cases Determined in the Supreme Court of the State of Illinois from November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor at Law. Volume XII. Reprinted from the Original Edition, with Annotations by William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 1881. File at: http://files.usgwarchives.net/il/cass/court/gibson35gwl.txt This file has been created by a form at http://www.genrecords.org/ilfiles/ File size: 12.2 Kb