Washington County IL Archives Court.....Stoker, Darius Greenup V William 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 17, 2008, 9:32 pm

Source: Reports Of Cases - Il
Written: 1850

Darius Greenup, appellant, v. William Stoker, appellee.

Appeal from Washington.

A sale of a tract of land upon execution will not be set aside, merely because 
it was sold at a sacrifice, and was not offered in separate parcels; something 
should be shown to satisfy the court that the land sold was susceptible of 
advantageous division, and that the sale was injudicious. (a)

In case of a vacancy in the office of sheriff, the coroner may go on and 
finish the execution of a process, directed to the sheriff. (b)

This bill was filed in the Washington Circuit Court, by William Stoker, 
praying that the sale of certain lands might be set aside, as being unlawful 
and oppressive.

The bill sets forth that a judgment for costs was rendered against Stoker for 
the sum of $106.20, upon which execution was issued and placed in the hands of 
an under sheriff, who levied on the south east quarter of section 35, town 1 
south, range 3 west, which execution was by the under sheriff placed in the 
hands of the coroner, who proceeded to sell the land to the highest bidder, 
under the levy made by the under sheriff. The land, being 160 acres more or 
less, was offered in a body, and struck off for the sum of ten dollars by the 
under sheriff who made the levy. That the land sold is good timbered land, 
upon which there is a good rock quarry, and that the land was worth $800. That 
no money passed from the purchaser to the coroner, but that the purchaser 
applied the bid to fees due him as under sheriff. That he sent ten dollars to 
his brother, Jacob Stoker, for the purpose of having the land redeemed, hoping 
that his brother would pay the interest in addition and redeem the land, which 
he did not do. That complainant was absent in Mexico. That the sheriff who 
succeeded the sheriff that made the levy executed a deed for the land within 
fifteen months from the date of sale, to wit, in fourteen months and four 
days, to a brother of the purchaser. That the father of complainant offered 
the purchaser of the land $20 to obtain a title therefor.

Greenup admits generally the allegations of the bill, says that the purchaser 
was not under sheriff at the time of the purchase of the land, and that the 
title of Stoker to the land was distrusted, and that it was only worth about 
$300; that the sheriff resigned, and thereupon the coroner was authorized to 
act.

The cause was heard upon bill, answer, and replication, and oral proof, by 
Underwood, Judge, at October term, 1849, and a decree entered setting aside 
the sale, etc. The respondent, Greenup, prayed an appeal, and assigns for 
error, the want of equity in the bill, and that decree should have been for 
the appellant.

G. Trumbull, for appellant.

G. Koerner, for appellee.

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 does 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: Attorney General 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 chapter 99, section 18, of 
Revised Statutes, 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,” etc. 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 degree 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.

-----------------------------

(a) The principal case is doubted by Caton, J., in Cowen v. Underwood, 16 
Ill., 22, where it is held that it is the sheriff’s duty to offer for sale, 
real estate upon which he has levied, in separate parcels. The levy, in that 
case, was upon two parcels of land. The rule is that when lands or lots which 
could be divided and sold in parcels, are sold in a mass, such sale is 
irregular and will be set aside: Day v. Graham, 1 Gil., 435; Graham v. Day, 4 
Gil., 389; Ross v. Mead, 5 Gil., 171; Stewart v. Cross, Id., 442; Phelps v. 
Conover, 25 Ill., 272 (where the principal case is reconciled with the 
authorities cited). But such sale will not be set aside as against innocent 
second purchasers: McLean County Bank v. Flagg, 31 Ill., 290; Mixer v. Sibley, 
53 Ill., 61. Inadequacy of price alone is not sufficient to set aside a 
sheriff’s sale: Gibbons v. Bressler, 61 Ill., 110; Noyes v. True, 23 Ill., 
450; Mixer v. Sibley, 53 Ill., 61; Pickering v. Driqgers, 59 Ill., 65; Watt v. 
McGalliard, 67 Ill., 518; Heberer v. Heberer, Id., 253; Davis v. Pickett, 72 
Ill., 483. See Dutcher v. Leake, 44 Ill., 398 (annotated edition), and note.

(b) See R. S. 1874, ch. 31, sec. 9. At such a time service of process by the 
coroner's deputy is legal: Reed v. Reber, 62 Ill., 240.

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.

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