Greenup v. Brown, 1 Ill. 252, 1 Breese 252 (1828)

Dec. 1828 · Illinois Supreme Court

1 Ill. 252, 1 Breese 252

Wm. C. Greenup and Clement C. Conway, Plaintiffs in Error, v. A. B. Brown, Defendant in Error.

ERROR TO RANDOLPH.

Where a- fall and ample defense might be made at law, a court of chancery will not relieve. ⁽¹⁾

The time of the devastavit of an administrator is properly ascertained from the return of nulla bona to the execution issued against them in their representative character.

If an execution has issued irregularly and informally, the most speedy and easiest mode to obtain relief is to apply to a judge to stop all proceedings on it, until an application can be made to the circuit court to arrest or vacate the proceedings of the sheriff. ⁽²⁾

(1) See note to the case of More et al. v. Bagley et al., ante, p. 94.

(2) “A party out of term, intending to move to set aside or quash any execution, replevin bond, or other proceedings, may apply, to the judge at his chambers for a certificate, (and which the said judge may in his discretion grant,) certifying that there is probable cause for staying further proceedings until the order of the court on the motion; and a service of a copy of the certificate at the time of or after the service of the notice of the motion, shall thenceforth stay all further proceedings accordingly.” Purple’s Statutes, p. 827, sec. 46. Scates’ Comp., 263.

Opinion of the Court by

Justice Smith.

The plaintiffs in error ask the reversal of a decree, dismissing a bill seeking relief in equity, against a judgment entered in the circuit court of Randolph, against them in their personal capacity, upon a devastavit suggested and proven, which judgment has been affirmed in this court. We are at a loss to perceive on what possible ground the plaintiffs could expect such relief. It is not pretended that the judgment has not been fairly and regularly obtained, and after a due course of legal investigation ; no fraud or mistake is alleged, nor does it appear but what the party seeking the relief has actually availed himself of every possible ground of defense in the trial at law. The matters now asked to be re-examined in a bill in equity, have already been amply considered and determined in this court, upon reviewing the decision of the circuit court upon a writ of error. Nothing is disclosed in the bill but what would be matter of defense at law, and for aught that appears, has actually been used as grounds of defense. We can perceive no ground upon which the bill could have been entertained and the injunction granted in the circuit court, but upon the question whether the real estate of the defendants, which was taken in execution, was liable to be sold for less than two-thirds of its appraised value.

This must depend upon the fact when, in the language of the act of 1825,^* authorizing the sale of real estate on execution, the “ contract was made, cause of action accrued, or liability was incurred.”

To ascertain that, we are to determine the period of the commencement of such liability. This must depend on the evidence of a devastavit, and the proof to establish that is the return of nulla bona on the execution issued on the judgment against the administrators in their representative capacity. This return is alleged, in the bill, to be of a date long subsequent to the passage of the act of 1825, subjecting real estate to execution. The provisions of the act exempting real estate taken on execution from being sold for a less sum than two-thirds of its appraised value, referring entirely to contracts created, cause of action accrued, or liabilities incurred anterior to its passage, necessarily determines the point, that the present is not a case within the exemption created by the law. If the facts disclosed in the bill had shown a case within the provisions of the act, the sale might have been restrained, but the more regular course would have been to have applied to a judge for an order to stay all proceedings under the execution, until an application could be made to the circuit court, in term time, to arrest or vacate the proceedings of the sheriff. This would have been equally as effectual, and less oppressive, and would have been recommended for its simplicity and ease. We are satisfied that the order of the circuit court in dissolving the injunction and dismissing the bill for want of equity, was correct, and that the same ought to be affirmed, with costs, ^(a)

McRoberts, for plaintiffs in error.

Baker, for defendant in error.

Decree affirmed.

* Laws of 1825, p. 154.

(a) Vide Hubbard v. Hobson, ante, p. 190. Crow’s executors v. Prevo, ante, p. 216.