dissenting:
I do not concur in the opinion of the majority of the court in this case, and will briefly state the reasons why I do not consider the reasoning sound, or the conclusion just and equitable, reached in the majority opinion.
The fundamental error in the majority opinion arises from the assumption that “the only possible ground of complaint is that valuable property was sold for a small price.” If this conclusion was warranted by the facts in the record then the conclusion drawn in the majority opinion, that mere inadequacy of price is not a sufficient ground for setting aside a judicial sale, could not be the subject of serious controversy. That this assumption is a misapprehension is shown by the fact that the majority opinion proceeds to point out and discuss an objection that was made to the transcript, in respect to the omission of the word “property” after the word “personal,” in the réturn of the constable. In my opinion the disposition made of this objection to the transcript, in the majority opinion, wherein it is said, “if this rendered the sale void, so that the purchaser acquired no title, it appeared on the face of the transcript and would afford no basis for relief in a coúrt of equity,” announces á doctrine that has no application to bills, such as this was, to redeem one’s real estate from an irregular sale. I have always understood the law to be that one whose property had been sold for the payment of a just debt might for sufficient reason file a bill in equity for the purpose of removing the cloud upon his title, even though the judgment might be void and unenforcible at law.
I do not, however, regard the judgment under which the real estate in this case was sold as void. It is not necessary, in order to give appellee a standing, in equity, to redeem, that he should show that the judgment under which the sale was made was void. If there were irregularities in .the procedure not affecting the jurisdiction of the court, such facts, connected with gross inadequacy of price, will warrant a court of equity in setting aside the sale upon such equitable terms as good conscience and fair dealing require.
Upon referring to the appellants’ abstract of the record (pages 80 to 83, inclusive,) I find what purports to be an abstract of the transcript filed in the circuit court, upon which the execution was issued. This abstract fails to show that the summonses issued by the justice, and the returns thereon, were copied in the transcript. Section. 136 of chapter 79 of the Revised Statutes of 1905 provides as follows: “Every transcript desired to be used for the purposes aforesaid, shall be certified by the justice of the peace making the same, to be truly copied from the files and books of his office, and shall contain a copy of the original and each subsequent summons or process issued by the justice of the peace, the return of the officer or officers thereon, the judgment and the execution or executions issued thereon, with the return of the officer upon the same, and a copy of his docket in the case.” This statute is mandatory, and a transcript which fails to contain copies of all processes issued by the justice of the peace is insufficient. (Hobson v. McCambridge, 130 Ill. 367; Woofers v. Joseph, 137 id. 113; Merrick v. Carter, 205 id. 73.) Thus we see that the statute requiring the copies of the summonses and other processes to be in the transcript was disregarded. This was a serious irregularity.
The abstract which appellants have filed, and which I must assume states the facts as favorable to appellants as the record will warrant, shows that the transcript was not certified to by the justice of the peace who rendered the judgment. The law requires that the transcript shall be certified by the justice of the peace. This is another irregularity not noticed in the majority opinion.
In order to warrant the sale of real estate upon an execution issued upon a transcript from- a justice of the peace, it must appear that there has been a return of the execution showing that the judgment debtor has no personal property out of which the debt can be collected. The return in this case of the only execution shown in the transcript was that the defendants, “William Skakel and Edmund Church, have no personal in my county whereof I can cause to be made the judgment and costs within mentionéd, or any part thereof, according to the command of the within writ, and I therefore return the same no part satisfied.” This return does not appear to have been signed by anyone, and the abstract does not show whether it was made by a constable or written by some unauthorized person. I think that the signature of a constable to the return is important and that a failure to sign it is a very grave irregularity. No one could be sued for making a false return such as the above, without resorting to evidence to show who, in fact, made the return.
In the next place, this return might be literally true and yet the defendants have $100,000 of personal property liable to execution. The return does not show that the defendants have no personal property, but simply says the defendants have no “personal in my county whereof I can cause to be made the judgment and costs.” Of course, a court of equity, in order to accomplish justice, might read into this return the word “property” after the word “personal,” but it seems to me that it is a perversion of equitable principles to supply a defective return in order to uphold a sale of $20,000 worth of real estate for $132.04. I may guess or surmise that there was an omission of the word “property” after the word “personal” in the return, but the word “property” is not the only word that might be read into this return and make complete sense. I might insert the word “chattels,” “effects,” “estate,” “goods,” “earnings,” etc., any one of which would make the sense complete but would not make the return legal. This return, I think, is not in compliance with the statute.
With these defects and irregularities in the record I think it is a serious misapprehension to assume that this sale must be set aside for inadequacy, alone. In the case of Hobson v. McCambridge, supra, the suit was docketed, “T. Battles, for the use of Dr. W. H. Hobson,” but the judgment was in favor of W. H. Hobson. The transcript filed with the circuit clerk showed an execution issued by the justice in favor of “T. Battles, for the use of Dr. W. H. Hobson.” There was there no other irregularity. It was perfectly clear that W. H. Hobson was the beneficial plaintiff and the judgment was in his favor, yet this court in that case held that the slight variance between the execution and the judgment, in connection with the fact that $2000 worth of real estate had been sold to satisfy a judgment of $56.60, was such an irregularity as to. warrant a court of equity in depriving the purchaser of the advantage of a title acquired through such sale. In the course of the opinion in that case, on page 378, this court said: “While inadequacy, alone, may not, upon the grounds of public policy, be sufficient, of itself, to set aside a sale on execution, or a judicial sale, yet where there are circumstances of irregularity or of fraud, or that show that unfair advantage was sought by the purchaser or the person benefited by the sale, the inadequacy of price may be always taken into consideration and may become conclusive evidence of fraud.—Freeman on Executions, sec. 309; Morris v. Robey, 73 Ill. 462; Davis, Cory & Co. v. Chicago Dock Co. 129 id. 180.”
In Wooters v. Joseph, supra, the transcript filed in the circuit court was complete in all respects except that the copy of the execution issued on the judgment failed to show that it was signed by the justice. This was held to be a fatal defect.
In Merrick v. Carter, supra, the transcript showed the following return upon an execution issued by the justice: “Demand made August 7, 1894. Return execution no part satisfied, August, 1904.” This return was held sufficient, in connection with the sale of $3500 worth of real estate for $100, to justify setting the sale aside. On page 76 in that case this court said: “The method of enforcing the judgment of a justice against real estate is purely statutory, and such statutory proceeding must be strictly pursued or no title will be obtained by virtue of a sale thereunder.— Illinois Central Railroad Co. v. Weaver, 54 Ill. 319; Webster v. Steele, 75 id. 544.”
As already suggested, in the case at bar four lots belonging to appellee, worth in the aggregate $20,000, were sold in mass for $132. In view of the serious irregularities pointed out I think that a court of equity ought not to hesitate to set aside this sale upon equitable terms. This the court below did, requiring appellee to pay, in addition to the judgment, costs, interest and taxes, an attorney fee of $500. While appellee’s conduct in connection with this transaction does not commend him to the favorable consideration of the court, still I think that the terms imposed by the court below was ample punishment without depriving him of $20,000 worth of real estate. I think the judgment below should be affirmed.
Hand and Carter, JJ.: We concur in the dissenting opinion of Mr. Justice VickERS.