dissenting:
Today, the majority extends the protection of our Rule 305(j) (155 Ill. 2d R. 305(j)) to a sale ordered by the circuit court in a partition action brought by plaintiff, John Steinbrecher, against defendants, Rosemary C. Steinbrecher and Jerome Steinbrecher. The majority does so without addressing completely the concerns raised by Rosemary regarding the authority of the circuit court to order the sale. The majority does so without due concern that defendants have been deprived of their property under circumstances which, at best, evince a forced sale of the property, and, at worst, suggest that the sale was fraudulent. Indeed, the majority asserts that a fraudulent sale merits the protection of our Rule 305(j). Further, in its haste to extend Rule 305(j) protection to this sale, the majority overrules long settled precedent regarding the elements of jurisdiction, and the equally settled precedent that this court will not countenance fraud. Because I believe that this court has a responsibility to examine matters of jurisdiction, and an affirmative duty to refrain from condoning fraud, I respectfully dissent.
FACTUAL BACKGROUND
The facts as stated in the majority opinion require elaboration. In the complaint for partition filed on November 28, 1995, plaintiff represented that he and defendants, the heirs and beneficiaries of the estate of Francis J. Steinbrecher, held title to the property as tenants in common. Plaintiff named as additional defendants Hinsdale Nurseries, Inc., C.D.’s Trees Service, and David Mukelson, tenants in possession of certain portions of the property, and Farm Credit Services of Northern IIlinois, the holder of a mortgage on a portion of the property. Plaintiff did not name the estate as a defendant even though the estate only released its interest in the property on January 31, 1997.
On April 26, 1996, plaintiff requested that the circuit court appoint a commissioner to assess the feasibility of a partition. On May 5, 1996, the court appointed Chicago Title & Trust Company, as a single commissioner, to partition the property. Chicago Title declined the appointment and, eventually, Michael R. Crowley was appointed as a substitute commissioner. Prior to the appointment of Crowley as substitute commissioner, the court did not ascertain and declare the rights, titles and interest of all the parties in the action, nor did it enter judgment of partition according to the rights of the parties. Further, Crowley did not take and subscribe an oath that he would fairly and impartially partition the property according to the rights and interests of the parties as declared by judgment of the court.
On March 11, 1997, Crowley submitted an “Appraisal/Commissioner’s Report” to the court. In the report, Crowley valued the property, consisting of three parcels of land with a total of 409 acres, at $4,500,000. Crowley noted that, if the three parcels were sold individually, the value of the property would be $4,859,000. The values ascribed were as of August 30, 1996.
For purposes of partition, Crowley divided the three parcels into five segments. Crowley then stated:
“One of the purposes of this analysis is to recommend to the client an equitable distribution of the various segments and parcels of the subject property among three parties. The appraiser considered various permutations of the five various segments, with individual values of $1,595,000; $1,608,000; $1,008,000; $426,000; and $222,000.
None of the combinations of these five segments resulted in three relatively equal units. The closest combination to this target was: the South Segment of Parcel #1 at $1,595,000, the North Segment of Parcel #1 at $1,608,000, leaving all of Parcel #2 at $1,434,000, and all of Parcel #3 at $222,000, for a total of $1,656,000 as the third unit.
While the first and second combinations resulted in relatively similar values, the third combination was substantially greater. And therefore, the appraiser, acting as the court appointed commissioner, was unable to recommend an equitable distribution of these assets among three parties unless other compensation was provided to the first two combinations and/or some concession was applied to the third.”
At a bench trial in August 1997, Crowley testified that the three parcels were not contiguous. Parcel 1 was located approximately one mile from parcels 2 and 3. If the three parcels were sold as a unit, the property would be on the market for a longer period of time. Additionally, a buyer would likely discount the price paid for the property as a whole. Again, Crowley noted that the appraised value of the property as a whole was $359,000 less than the appraised value of the three parcels.
Crowley testified that in attempting to partition the land, he divided parcels 1 and 2 into four segments. He believed that each parcel should be so divided because the parcels were bisected by a road. Adding parcel 3 to parcels 1 and 2, he obtained five segments that he attempted to partition equally. In his opinion, an equitable distribution or partition of the property in kind was not feasible unless some concession was made for the financial inequality between the three parcels as proposed for partition. Crowley did not consider further subdividing the 409 acres to arrive at a more equal partition of the property.
In a letter to all parties dated October 1, 1997, the court stated that the property could not be divided amongst the three heirs. The court ordered a public sale of the property, with the terms and notice of sale to be decided at a later date. Subsequently, in an order dated October 28, 1997, the court found that the three heirs were the owners of the property, each holding interests of an undivided one-third, as tenants in common. Further, the court found that the property could not be divided without manifest prejudice to the owners. The court ordered that the entire property be sold at public sale on terms agreed to between the parties or further ordered by the court. The court denied Rosemary’s motion for a stay of judgment pending appeal, and set the appeal bond at $3 million.
Upon motion of plaintiff, the court approved a contract for the real estate firm of Dolan and Murphy to sell the property. According to the contract, Dolan and Murphy had the exclusive right to sell the property for the period beginning January 9, 1998, and ending April 7, 1998. The contract was not renewed in April 1998. However, the court allowed Dolan and Murphy to continue marketing the property. On July 16, 1998, Dolan and Murphy forwarded to the clerk of the circuit court a contract submitted by Inland Real Estate Development Corporation for the purchase of the property. The purchase price proposed by Inland was $3.5 million. On July 28, 1998, Dolan and Murphy forwarded to the clerk of the circuit court a contract submitted by Robert Ham-man to purchase the property for $3,050,000.
At a hearing on July 30; 1998, plaintiff requested that the court approve one of the contracts submitted by Dolan and Murphy. Jerome objected to approval of the contracts, and the court continued the hearing to August 19, 1998. The night before the continued hearing, Dolan and Murphy mailed to the clerk of the circuit court a contract submitted by Moser Enterprises Inc., for the purchase of the property. The contract listed a purchase price of $3,550,000, $50,000 more than the purchase price proposed by Inland. At the hearing on August 19, 1998, plaintiff tendered copies of the Moser contract to the judge, and defendants. Over defendants’ objections, the court approved the Moser contract. Subsequently, the court denied Rosemary’s motion for rehearing.
On September 4, 1998, Inland filed a petition for leave to intervene and a motion to reconsider the order of August 19, 1998. Initially, Inland noted that its contract to purchase the property was a matter of record in the proceeding and was file stamped by the clerk of the. court on July 20, 1998. Moser’s contract to purchase the property was file stamped on August 19, 1998. Inland also noted that Dolan and Murphy did not advise Inland that Moser had submitted a contract to purchase the property. To the contrary, Dolan and Murphy advised Inland that the Inland contract would be approved by the court at the hearing on August 19, 1998. Relying on this representation, Inland did not attend the hearing.
Inland suggested that the court allow the parties to submit additional sealed offers to purchase the property. Inland represented to the court that it would make another offer, on terms comparable to Moser’s offer, with a higher purchase price. Inland believed that fundamental fairness to the buyers and to the heirs supported reopening the bids. At a hearing on September 24, 1998, plaintiffs counsel admitted telling Inland that Inland’s offer to purchase the property was the highest offer received. He also told Inland that if the court were to approve one of the offers it would be the one Inland submitted. He testified, however, that Dolan and Murphy received Moser’s offer to purchase the property the night before the hearing. The circuit court denied Inland’s petition for leave to intervene and confirmed the sale to Moser.
ANALYSIS
A. Court’s Statutory Authority
In the circuit court proceedings, as on appeal, Rosemary maintained that the circuit court’s judgment, and the sale pursuant thereto, were void because the circuit court failed to comply with the partition act in several aspects. Since the circuit court derived its authority to sell the property from the Act, Rosemary argued that the court’s failure to follow the dictates of the Act was jurisdictional.
The majority does not detail the aspects in which the circuit court failed to comply with the Act nor does it consider whether the circuit court exceeded its authority by failing to comply with any particular provision of the Act. I will outline the four allegations I find most troubling.
First, Rosemary alleged that the circuit court appointed a commissioner to partition the property without first ascertaining the rights, titles and interest of all the parties to the action. Section 17 — 105 of the Act provides:
“Judgment. The court shall ascertain and declare the rights, titles and interest of all the parties in such action, the plaintiffs as well as the defendants, and shall enter judgment according to the rights of the parties.” 735 ILCS 5/17 — 105 (West 1996).
Section 17 — 108 of the Act provides:
“Duty of Commissioners. The commissioners shall enter upon the premises and, if the same are susceptible of division without manifest prejudice to the rights of the parties, they shall make partition thereof, allotting the several shares to the respective parties, quality and quantity relatively considered, according to their respective rights and interests as adjudged by the court ***. If the premises are not susceptible of division without manifest prejudice to the parties in interest, the commissioners shall value each piece or parcel separately.” 735 ILCS 5/17 — 108 (West 1998).
Thus, the circuit court must declare the rights of the parties and enter a judgment of partition according to those rights before it appoints commissioners to partition the premises. Indeed, the commissioners are not able to partition the premises without direction from the court regarding the rights and interest of the parties. Without such direction, the commissioners simply do not know the identities of the owners and what portion of the land each owner is entitled to.
The circuit court appointed Crowley substitute commissioner on August 30, 1996. Crowley submitted his report to the court on March 11, 1997. Subsequently, in its order of October 28, 1997, the court found that the three heirs were the owners of the property, holding interest of an undivided one-third each, as tenants in common. It thus appears that the court did not comply with the requirements of the Act.
Second, Rosemary alleged the circuit court failed to require that Crowley take an oath, as commissioner, to fairly and impartially partition the property. Section 17— 107 of the Act provides:
“Oath of Commissioners. Each commissioner shall take and subscribe an oath or affirmation fairly and impartially to make partition of the premises, according to the rights and interests of the parties, as declared by the judgment of the court, if the same can be done consistently with the interests of the parties; or, if the same cannot be so divided without manifest prejudice to the parties in interest, that they will fairly and impartially appraise the value of each piece or parcel of the premises sought to be divided, and make a true report to the court.” 735 ILCS 5/17 — 107 (West 1996).
In Tibbs v. Allen, 27 Ill. 119 (1862), this court noted that the commissioners appointed by the circuit court in the partition action did not take the oath prescribed by statute. “They were not sworn to make partition, ‘in accordance with the judgment of the court as to the rights and interests of the parties,’ but only sworn to divide the land according to their own opinions of those rights and interests, without regard to the judgment of the court.” Tibbs, 27 Ill. at 126-27. For this, and other reasons, this court reversed the decree for the sale of property and remanded for further proceedings. See also Sullivan v. Sullivan, 42 Ill. 315, 319 (1866) (“After their appointment, and they have taken the oath required by the statute, then, and not till then, are they clothed with legal authority to act as commissioners”).
In the present case, the record confirms that Crowley did not take an oath as commissioner.
Third, Rosemary alleged that the circuit court was not authorized to sell the property because Crowley did not report that the property could not be divided in kind. Section 17 — 116 of the Act provides:
“Sale of premises not susceptible to division. When the whole or any of the premises sought to be partitioned cannot be divided without manifest prejudice to the owners thereof, and the commissioners appointed to divide the same so report, the court shall order the premises not susceptible of division to be sold at public sale, upon such terms and notice of sale as the court directs.” 735 ILCS 5/17 — 116 (West 1996).
Thus, it is only upon a finding by the commissioners that the property is not susceptible of division that the circuit court will order a sale of the property.
Crowley’s report states:
“While the first and second combinations resulted in relatively similar values, the third combination was substantially greater. And therefore, the appraiser, acting as the court appointed commissioner, was unable to recommend an equitable distribution of these assets among three parties unless other compensation was provided to the first two combinations and/or some concession was applied to the third.” (Emphasis added.)
Was Crowley thereby making an unequivocal statement that the property could not be partitioned without manifest prejudice to the parties in interest, or was Crowley suggesting that the property could be partitioned subject to additional compensation to some of the owners? If the actual finding was that the property could be divided subject to owelty payments, the circuit court could not direct that the property be sold. In so doing, the circuit court would have exceeded its authority under the statute.
In Peck v. Peck, 16 Ill. 2d 268 (1959), this court held that a judgment of partition was invalid because it was not in conformity with the partition act. The court observed:
“The object of partition is to enable those who own property in common to sever their interests, so that each one may take possession of, enjoy, and improve his separate estate at his own pleasure. [Citations.] The law favors a division of land in kind, rather than a division of the proceeds of a sale thereof, and a sale under partition is proper only where a division of the premises cannot be made without prejudice to the rights of the interested parties. [Citations.] To implement this policy our statute provides for the appointment of commissioners to determine whether property is susceptible of division, [citation] and in construing such statute this court has said: '*** whether the proceeding for partition is by petition under the statute or by bill in chancery, an essential prerequisite to a decree authorizing a sale is the appointment of commissioners to make partition, and a report by them that the land is not susceptible of partition; *** section 16 of the Partition Act is mandatory, and *** where partition is sought by either mode, a decree for sale is erroneous, unless based upon a report of commissioners. ’ [Citations.] Considering these established principles it is manifest that the court was in error in directing a sale of appellant’s interest in the manner prescribed.” Peck, 16 Ill. 2d at 285-86.
This court remanded the cause to the trial court for the entry of a decree in conformity with the partition statute. See also Rosenbaum v. Rosenbaum, 38 Ill. App. 3d 1, 15 (1976) (The court observed that a decree of sale is erroneous unless it is based on the report of a commissioner or commissioners. Commissioners were not appointed in the case, nor did the report of a commissioner precede the lower court’s order of sale. Therefore, the judgment of the court “did not include nor can it be construed to include a valid partition judgment”).
Returning to the present facts, the property at issue consisted of 409 acres of land. The very size of the property suggests that some division in kind would have been possible. As this court observed in considering a report that 720 acres of land could not be divided:
“It would require much proof to induce the belief that so much land could not be divided fairly and equally, according to quantity and quality, among seven claimants.” Tibbs, 27 Ill. at 128.
Fourth, Rosemary alleged that the circuit court was not authorized to sell the property in any manner other than at public sale. Section 17 — 116 of the Act provides that “the court shall order the premises not susceptible of division to be sold at public sale.” 735 ILCS 5/17 — 116 (West 1996). The circuit court allowed the property to be listed exclusively with Dolan and Murphy. Contracts to purchase the property were submitted to Dolan and Murphy, and the property was eventually sold to Moser. There was no notice of the property’s sale to the public. Nor was there a sale at auction of the property. Thus, it appears that the circuit court did not follow the dictates of the statute in conducting the sale of the property.
The mechanics of the sale of the property in this case demonstrate the problems inherent in a sale which is not at public vendue. Inland’s contract to purchase the property was a matter of record in the proceeding and was file stamped by the clerk of the court on July 20, 1998. Moser’s contract to purchase the property was mailed to the clerk of the court the evening of August 18, 1998, and was presented to the circuit court at the hearing on August 19, 1998. The purchase price listed in Moser’s contract, $3,550,000, was only $50,000 more than the purchase price listed in Inland’s contract. Inland was not informed of Moser’s contract, and, consequently, Inland did not increase the purchase price listed in its contract. Moreover, the circuit court refused to reopen bidding on the property.
Three parties submitted contracts for the purchase of the property. These parties were vying for the right to construct new housing in an area undergoing substantial development. Surely, a public sale with all parties aware of the proposed bids would have maximized the returns to the owners of the property.
The majority purports to answer Rosemary’s argument in a footnote. See 197 Ill. at 524. Therein, the majority notes that the circuit court had jurisdiction and authority over the parties and the property. The majority also notes that “a circuit court does not lose jurisdiction because it made a mistake in determining the facts, the law, or both.”
The majority notes correctly that a court may not lose jurisdiction because it makes a mistake in determining the facts or the law. People v. Davis, 156 Ill. 2d 149, 156 (1993). However, Rosemary did not merely argue that the circuit court made a mistake in determining the facts or the law. Rosemary argued that the circuit court failed to follow the very statute empowering the court to sell the property. As this court observed in Davis, “the power to render the particular judgment or sentence is as important an element of jurisdiction as is personal jurisdiction and subject matter jurisdiction.” Further, “a judgment or decree may be void where a court has exceeded its authority.” Davis, 156 Ill. 2d at 156.
Thus, in People v. Arna, 168 Ill. 2d 107 (1995), this court held void a trial court order which did not conform to a statutory requirement. The trial court had jurisdiction of the parties and subject matter. However, the trial court did not have the inherent authority to enter an order imposing concurrent terms on the defendant.
And in Armstrong v. Obucino, 300 Ill. 140 (1921), this court found that a sale made contrary to statute, and a deed executed in pursuance of such sale, were void. In so doing, this court observed:
“The statement has very frequently been made that where a court has jurisdiction of the parties and the subject matter, its decree, however erroneous, can only be attacked on appeal or error; but the rule is subject to an exception equally well settled, — that a decree may be void because the court has exceeded its jurisdiction. The bill prayed for the enforcement of the lien by a sale beyond and contrary to the powers given by the statute for enforcing mechanics’ liens, and it does not follow that because the court had acquired jurisdiction of the parties and the subject matter it could make such a decree as was prayed for. Courts are limited in the extent and character of their judgments, and if they transcend their lawful powers their judgments and decrees are void and may be collaterally impeached wherever rights claimed under them are brought in question. The doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment or decree, however erroneous, cannot be collaterally assailed, is only correct when the court proceeds according to the established modes governing the class to which the case belongs and does not transcend in the extent and character of its judgment or decree the law or statute which is applicable to it. [Citations.] Where a court, after acquiring jurisdiction, has assumed to enter a decree for a sale which goes beyond the limits of the jurisdiction and transgresses the law the decree is void, and the sale based thereon is likewise an absolute nullity.” Armstrong, 300 Ill. at 142-43.
See also In re M.M., 156 Ill. 2d 53, 64 (1993) (jurisdiction is “the power of the court to adjudge concerning the general question involved [citation], as well as the power to grant the particular relief requested [citations]. Every act of the court beyond that power is void”); People v. Wade, 116 Ill. 2d 1 (1987); Woodward v. Ruel, 355 Ill. 163, 173 (1933) (Stone, J., dissenting) (“One of the essentials of a valid judgment is that the court have jurisdiction to render that particular judgment. Where a court, after acquiring jurisdiction of the subject matter, transcends the limits of the jurisdiction conferred, its judgment so entered is void”); Maloney v. Dewey, 127 Ill. 395, 402-03 (1889) (where a court, having jurisdiction of the person, and jurisdiction to adjudicate upon the subject matter, renders a judgment not authorized by law in that class of cases, under any possible proofs, its judgment is not an instance of mere misapplication of law to particular facts, or erroneous interpretation of rules in particular cases, but an attempt to exercise an authority which has no existence in the particular case).
To answer Rosemary’s contention, the majority must actually determine whether the circuit court exceeded its authority in ordering the sale of the property, and whether the circuit court’s failure to follow the Act rendered its judgment void. The majority is unwilling to do so.
Instead, citing In re Marriage of Mitchell, 181 Ill. 2d 169 (1998), the majority suggests that I “overlooked] our recent discussion explaining the distinction between ‘void’ and ‘voidable’ judgments.” 197 Ill. 2d at 530. The majority educates:
“In Mitchell we stated that ‘[t]he question whether a judgment is void or voidable depends on whether the court entering the challenged order possessed jurisdiction over the parties and the subject matter. [Citation.] If jurisdiction is lacking, any subsequent judgment of the court is rendered void ***.’ In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998), quoting People v. Davis, 156 Ill. 2d 149, 155-56 (1993).
Significantly, the dissent does not dispute that the trial court in the present case had both subject matter jurisdiction and personal jurisdiction over the parties. For this reason, the judgment is not ‘void.’ This is true even if we were to assume that the trial court failed to strictly follow the provisions of the Act.” 197 Ill. 2d at 530-31.
Thus, according to the majority, a judgment rendered by a court lacking the inherent power to make or enter the particular order involved is not “void” but merely “voidable.”
I note that Mitchell relied primarily upon Davis, a decision which affirmed that “the power to render the particular judgment or sentence is as important an element of jurisdiction as is personal jurisdiction and subject matter jurisdiction.” Davis, 156 Ill. 2d at 156. I also note that Mitchell nowhere states that it is overruling Davis or the precedent from which Davis is derived. See also Wade, 116 Ill. 2d at 5; Woodward, 355 Ill. at 173 (Stone, J., dissenting); Maloney, 127 Ill. at 402. I am confident that Mitchell was not intended to overrule settled precedent on the elements of jurisdiction.
Assuming, however, that Mitchell created some confusion as to the continued validity of the requirement that a court have inherent power to make or enter the particular order involved, such confusion was dispelled in City of Chicago v. Roman, 184 Ill. 2d 504, 510 (1998), a decision issued 10 months after Mitchell, and one which the majority fails to acknowledge. In Roman, 184 Ill. 2d at 510, this court reiterated that “[a] void judgment is one entered by a court that lacks, inter alia, the inherent power to make or enter the particular order involved.” See also People ex rel. Waller v. McKoski, 195 Ill. 2d 393, 401 (2001) (“Because the concurrent sentences imposed upon defendant by the circuit court were not authorized by section 5 — 8—4(b), those sentences are void”).
I submit that Mitchell is not this court’s latest pronouncement on jurisdiction. I also submit that it is the majority, not this dissent, which has failed to acknowledge recent precedent of this court.
The majority offers two distinctions. First, the majority states:
“Davis discusses jurisdiction ‘in the context of criminal proceedings.’ Davis, 156 Ill. 2d at 156. Criminal proceedings that involve the power to render judgments or sentences address a separate set of concerns not at issue in the present matter.” 197 Ill. 2d at 532.
The majority does not elaborate on the nature of these “concerns” or explain why these “concerns” require a different application in the context of a criminal proceeding. Also, the majority does not cite any law in support of the distinction it seeks to draw.
I note that Davis cites Thayer v. Village of Downers Grove, 369 Ill. 334, 339 (1938), a case involving special assessments and bonds, in support of the proposition that “the-power to render the particular judgment or sentence is as important an element of jurisdiction as is personal jurisdiction and subject matter jurisdiction.” Davis, 156 Ill. 2d at 156. I also note that Davis cites Armstrong, 300 Ill. at 142-43, a mechanics’ hen case, in support of the proposition that “a judgment or decree may be void where a court has exceeded its jurisdiction.” Davis, 156 Ill. 2d at 156. Thus, Davis does not draw a distinction between criminal and civil proceedings and does not provide support for the proposition advanced by the majority.
Further, Mitchell, 181 Ill. 2d 169, the centerpiece of the majority’s analysis on jurisdiction, does not support a distinction between jurisdiction in criminal and civil proceedings. At issue in Mitchell was the validity of a child support order which expressed the support level as a percentage of income, instead of a dollar amount. As noted above, Mitchell relied primarily upon Davis in its discussion of jurisdiction. Thus, Mitchell, a civil case, relied upon the holding of Davis, a criminal case, without drawing any distinction between civil and criminal proceedings.
McKoski, 195 Ill. 2d at 401, Roman, 184 Ill. 2d at 510, Arna, 168 Ill. 2d at 113, and Davis, 156 Ill. 2d at 156, all stand for the proposition, as stated in Roman, that: “A void judgment is one entered by a court that lacks, inter alia, the inherent power to make or enter the particular order involved.” This holding cannot be overlooked or disposed of on the ground that Davis was a criminal proceeding.
Next, the majority draws a distinction between cases adopted before, and after, the reform to the judicial system in 1964. The majority concedes that the “inherent authority” requirement was a part of this state’s jurisprudence before 1964, and applied to the exercise of jurisdiction by our circuit courts. See 197 Ill. 2d at 529-30. However, the majority maintains that, with the implementation of the reform to the judicial system, the circuit courts derive jurisdiction from the constitution and need not act in conformance with statutory authority in order to exercise jurisdiction. The majority explains:
“The dissent mistakenly relies upon a rule of law not applicable to the present circumstances. The ‘inherent authority’ requirement existed before reform to the judicial system in 1964. Effective January 1, 1964, an amendment to article VI replaced limited jurisdiction: ‘Circuit Court[s] shall have unlimited original jurisdiction of all justiciable matters.’ Ill. Const. 1870, art. VI, § 9 (amended 1964); accord Ill. Const. 1970, art. VI, § 9 (‘Circuit Courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction’). This amendment created a single integrated trial court vested with jurisdiction to adjudicate all controversies. [Citation.] Thus, the ‘inherent power’ requirement applies to courts of limited jurisdiction and administrative agencies.” 197 Ill. 2d at 529-30.
The majority concludes that: “a circuit court is a court of general jurisdiction, which need not look to the statute for its jurisdictional authority.” 197 Ill. 2d at 530.
This court has rejected the notion that a court of general jurisdiction, which derives its jurisdiction from the constitution, may proceed in derogation of statutory authority. In In re M.M., 156 Ill. 2d at 65, this court observed: “[I]t is by reason of our constitution that our circuit courts acquire power to adjudge ***.” However, “it is by reason of the statute that the justiciable matter exists,” and the circuit court must proceed within the strictures of the statute. In re M.M., 156 Ill. 2d at 65-66.
The distinction the majority draws is unavailing. To date, this court has steadfastly recognized that the circuit court must have the inherent power to make or enter the particular order involved. Roman, 184 Ill. 2d at 510. This court has also recognized that “a judgment or decree may be void where a court has exceeded its authority.” Davis, 156 Ill. 2d at 156, citing Armstrong, 300 Ill. at 142-43.
The majority misapprehends my dissent. The majority states:
“The dissent maintains that the trial court lacked authority to order the sale because it failed to comply with the Act, and that this rendered the judgment ‘void.’ According to the dissent, failure to follow the Act is fatal to the circuit court’s jurisdiction. The Act, the dissent argues, gives the circuit court the ‘inherent authority’ to adjudicate the controversy and, therefore, failure to follow procedure under the Act divests the court of jurisdiction and renders the order ‘void.’ ” 197 Ill. 2d at 529.
I make no pronouncement in my dissent as to the validity of the circuit court’s order and the resultant sale. My objective is more modest. I merely ask that the majority address Rosemary’s contention that the circuit court’s judgment, and the sale pursuant thereto, were void because the circuit court failed to comply with the Act in several aspects. The majority, however, “declines to address or outline those irregularities because they are secondary to Rule 305(j).” 197 Ill. 2d at 529.
B. Fraud in Sale
In her appeal, Rosemary suggested that a fraud was perpetrated in the sale of the property to Moser. She directed this court’s attention to Moser’s access to information regarding the other contracts to purchase the property; the circumstances surrounding Moser’s last minute contract to purchase the property; the lack of notice to defendants regarding Moser’s contract to purchase the property; the representations made to Inland that the circuit court would approve Inland’s contract to purchase the property, and that Inland’s presence at the hearing was not necessary; the circuit court’s denial of Inland’s petition for leave to intervene; and the circuit court’s refusal to reopen the bidding when presented with an offer $50,000 higher than Moser’s.
The majority does not give voice to, or acknowledge Rosemary’s argument in any way. I am of the opinion, however, that this court has an affirmative duty to address this argument, for, if the argument is meritorious, it obviates all reasons for extending Rule 305(j) protection to this sale.
From my review of the record, this case appears troubled by irregularities. Plaintiffs complaint for partition was not verified as required by section 17 — 101 of the Act.5 See 735 ILCS 5/17 — 101 (West 1996). Plaintiff averred in November, 1995, that he and defendants held title to the property as tenants in common. In actuality, the estate did not release its interest in the property until January 31, 1997. The circuit court did not ascertain and declare the rights and interest of the parties prior to appointing a commissioner to partition the property. See 735 ILCS 5/17 — 105, 5/17 — 108 (West 1996). The circuit court did not require that the commissioner take an oath “fairly and impartially to make partition” of the property. See 735 ILCS 5/17 — 107 (West 1996). The commissioner’s report did not contain an unequivocal finding that the property could not be divided. See 735 ILCS 5/17 — 109 (West 1996). The property was not sold at public vendue.
These irregularities aside, the circuit court ordered the sale of the property as one unit. The property consisted of three parcels of land, with extensive acreage. In his report, Crowley valued the property at $4,859,000 if the three parcels were sold individually, compared to $4,500,000 if the property was sold as a unit. Parcel 1 was located a mile away from parcels 2 and 3. Thus, the sale of the property as a unit could not be justified by contiguity of the parcels. In Meeker v. Evans, 25 Ill. 283 (1861), this court observed:
“It would seem, that when several distinct tracts of land are ordered to be sold by the master, under a decree, it is the duty of that officer to sell each tract separately, unless it is evident that the land will be more valuable in one than in several tracts. [Citation.] It is believed that this rule is of general if not uniform application. *** When several tracts of land are sold en masse, for a gross sum, on the same biddings, the presumption is, that it must have been sold for a smaller amount than they would have brought had each tract been offered separately. When offered en masse, persons of limited capital are necessarily precluded from competing at the sale. And when such a sale is made, and an objection is interposed on that ground, to its confirmation, it will be set aside; unless the evidence clearly shows that it has produced more money than it would have done had it been offered in separate parcels.” Meeker, 25 Ill. at 285.
See also Bowen v. Bowen, 265 Ill. 638, 640 (1914) (“It is the duty of the master in making a sale to offer the land in parcels if the same is susceptible of division. If the master fails in the performance of his duty in this regard and the lands are thereby sold for an inadequate price the sale will be set aside upon a proper showing”).
The circuit court ordered the sale of the property as one unit even though the evidence showed that it would take longer to sell the property as a unit, and the property would fetch a higher price if the parcels were sold individually. This irregularity in the sale of the property, along with the others noted above, fuels concerns that the interest of defendants in the property was not protected.
In Meeker, 25 Ill. at 283, this court also stated:
“In conducting judicial sales good faith must he observed, as well by the purchaser as by the officer, intrusted by the court and the law, to enforce its judgments and decrees, in that mode. The rights of all parties to the proceeding must be regarded and properly protected. When, by a violation of the requirements of the law, by the officer conducting a sale, or by the purchaser at the bid-dings, the rights of the owner are sacrificed or injuriously affected, the court will interpose, and set aside the sale, and require it to be again offered. Any fraud by the purchaser, by which competition is prevented, or any neglect of duty on the part of the officer producing that result, is regarded as sufficient grounds to order a re-sale.” Meeker, 25 Ill. at 284.
And, in Tibbs, this court observed:
“When it is considered, that titles to valuable lands can be divested by this statutory proceeding, it is essential the statute should be observed, the courts not tolerating any essential departure from it.” Tibbs, 27 Ill. at 128.
I could not agree more with this court’s assessment that the authority to partition lands also entails a duty to protect the rights and interest of all parties to the lands.
The majority does acknowledge my concerns regarding the possibility of fraud in this matter. In footnote 4 of the opinion, the majority states:
“The dissent also maintains that additional irregularities suggest fraud in the sale. The dissent fails to explain how this overcomes Rule 305(j) and Rosemary’s failure to file a motion to stay in the appellate court.” 197 Ill. 2d at 527.
Since the majority requests an explanation, I provide one. This court is a court of equity and justice; this court has an affirmative duty not to condone fraud. Litigants seeking the protection of this court must do equity. Likewise, under our Rule 305(j), a purchaser seeking the protection of this court must have acted in good faith in the purchase of the property.
This court affords protection to bona fide purchasers at judicial sales because these purchasers rely upon the court processes and are entitled to a measure of security-in their purchases. Where a sale is procured through fraud or collusion between a plaintiff and a purchaser, the purchaser is not only aware of the irregularities in the sale but is an active participant thereto. By what right does that purchaser lay claim to protection of the fraudulent sale? He has not relied upon the court processes, but upon his own actions in effectuating the purchase of the property. To afford him the protection of this court is to place a premium upon his misconduct. And what of the rights of the defendant who has been deprived of his property? It must be remembered after all that “[w]hilst the law guards the rights of bona fide purchasers at judicial sales with scrupulous care, it will protect owners from being deprived of their property by proceedings unauthorized by law.” Morris v. Hogle, 37 Ill. 150, 155 (1865); see also Brod v. Brod, 390 Ill. 312, 325 (1945) (“While the right to partition is an absolute one, [citation] a court of equity will not permit the proceeding to be used to circumvent and avoid the established principles of law and public policy and will, in the exercise of its general, equitable jurisdiction, control the proceedings so as to protect the rights of all parties concerned.”); Bydalek v. Bydalek, 396 Ill. 65, 71 (1947); Barnes v. Freed, 342 Ill. 73, 78 (1930) (where consideration paid for land was inadequate, purchaser at a judgment sale could retain his advantage only by showing that he acquired his title by proceedings free from fraud or irregularity).
This court has long espoused the principle that a party may obtain relief, on the ground of fraud, against a void as well as a voidable judgment. Elting v. First National Bank, of Biggsville, 173 Ill. 368, 391 (1898), citing Nelson v. Rockwell, 14 Ill. 375 (1853). The majority eschews this principle without explaining why this court should place its imprimatur upon, and afford protection to, a sale which may be fraudulent.
Explanations aside, the majority fails to notice that its approach to the fraud issue is somewhat inconsistent with the reasons it advances in support of the circuit court’s judgment, and the sale pursuant thereto. The majority states:
“Public policy of this state supports our conclusion. Illinois law protects the integrity and finality of property sales, including judicial sales. [Citations.] Indeed, it extends this protection to purchasers who without notice at the time of the purchase buy in good faith. This finality and permanence is relied on by both purchasers and others in connection with the purchase of the property, including financial institutions, title insurers, realtors, and tenants. Absent this policy, no person would purchase real property involved in a judicial proceeding, if afterwards he incurred the hazard of losing the property due to facts unknown to him at the time of the sale.” 197 Ill. 2d at 528-29. (Emphases added.)
Thus, the majority recognizes that Illinois law affords protection to good-faith purchasers, that is “purchasers who without notice at the time of the purchase buy in good faith.” Further, the majority recognizes that this court extends protection to a good-faith purchaser in order to protect the purchaser from the “hazard of losing the property due to facts unknown to him at the time of the sale.” However, the majority refuses to address Rosemary’s contention that the sale of the property was fraudulent. Instead, the majority extends the protection of our Rule 305(j) to Moser’s purchase of the property. The inconsistency could not be more apparent.
CONCLUSION
Rosemary argued that the judgment of partition, and the sale pursuant thereto, were void because the circuit court did not comply with the requirements of the Act. The majority answers that Rule 305(j) precludes Rosemary from contesting the validity of the partition sale. However, Rosemary’s argument called into question whether the circuit court exceeded its statutory authority and whether there was a final judgment in the circuit court. If the circuit court’s judgment, and the resulting sale, are void, Rule 305(j) does not apply, for it is a requirement of the rule that the property passed pursuant to a final judgment. A void judgment may be attacked either directly or indirectly at any time. Davis, 156 Ill. 2d at 155.
In addition, Rosemary questioned whether the sale of the property .to Moser was fraudulent. While I do not imply that the sale was fraudulent, the record presents sufficient facts to merit consideration of this issue. In the event due consideration leads to the conclusion that the sale of the property to Moser was fraudulent, I, for one, could not endorse or protect the sale.
I believe this court is duty-bound to protect the rights of all parties to the partition action. The rights of one owner must not be sacrificed or injuriously affected to benefit another. Likewise, the rights of the owner must not be compromised to benefit one who is not a good faith purchaser at a judicial sale. Where it appears that the party seeking partition of the land has colluded with the purchaser to effectuate a fraudulent purchase, that purchase must be set aside.
This court can only fulfill its responsibilities to the owners of the land by examining questions of jurisdiction, and exhibiting intolerance to all manners of fraud and collusion. The majority believes otherwise. In extending Rule 305(j) protection to the present sale, the majority overrules long settled precedent regarding the elements of jurisdiction, and clarifies that fraud is not a sufficient ground to withhold Rule 305(j) protection from a purchaser. My disagreement could not be greater. Accordingly, I dissent.
JUSTICES McMORROW and KILBRIDE join in this dissent.
Although the complaint purports to be verified, it was not subscribed and sworn to before a public notary. See Hough v. Weber, 202 Ill. App. 3d 674, 692 (1990).