Atwood v. Caldwell, 12 Ill. 96 (1850)

Nov. 1850 · Illinois Supreme Court

12 Ill. 96

Moses G. Atwood, Appellant, v Albert G. Caldwell et al., Appellees.

APPEAL FROM MADISON.

The laws for the liquidation of the Bank of Illinois, were designed to vest the assignees with authority to sell the real estate of the bank at public or private sale, and they are not bound to sell to the person who first offers to pay the appraised value. And if the assignees exercise the right within a reasonable time and offer to sell, there is then no cause of complaint with their action.

The bill in question was filed for an injunction against the assignees of the Bank of Illinois, to prevent their selling certain lands, and to enforce a conveyance of title of the same lands to the complainant, plaintiff in error.

The bill states, that in accordance with the 12th section of an act of the Legislature, passed Feb. 25, 1843, entitled “An act to reduce the public debt,” &c., the Judge of the Madison Circuit Court appointed appraisers to appraise the real estate of the Bank of Illinois, in Madison County. That a majority of said appraisers, appraised on the 16th day of Oct., 1849, Blocks 30, 31, and 32, in Smith’s addition to the city of Alton. That on the 19th of Oct., 1849, complainant tendered said appraisement with $500, (being more than the amount of the appraisement,) of the certificates of said Bank, to defendant, Smith, for himself, and assignees, and demanded • a deed for said Blocks. That said assignees refused to make a deed, and afterwards advertised for sale and struck off said Blocks, to other persons, as purchasers. That complainant gave notice of his rights at the time of last pretended sale. Bill prays an injunction to prevent execution of deeds to any other person than complainant, and that said assignees make complainant a deed of said Blocks.

The answer of Caldwell et al., assignees, &c., denies that the appraisement was made in compliance with said 12th section of the statute—because not made at the instance of the assignees, but that of complainant, defendant Dow, and one Robert Smith; and because the certificate of surveyor does not give the quantity of land in each Block; states that complainant made no tender personally, but admits that said Smith did make tender as the agent of complainant; denies violation of said statute in refusing to make deed, &c.; states that assignees, about the 30th óf November, 1849, caused an appraisement of said Blocks by two of the appraisers, who appraised the same at $25 per acre; which assignment was returned duly to said assignees ; that said Blocks were advertised and sold at public sale, to wit:

Block 30, to defendant Ingham, for.....$1589 25

“ 31, ' “ Dow, “...... 382 50

“ 32, “ Garbut, “..... 150 75

Payable in Bank certificates; that deeds are partly made out for such purchasers, &c. The purchasers of the above lots are all made parties to the bill.

Agreement made in case.

“ It is agreed between the parties in the above entitled cause, that the appraisement set forth in complainant’s bill, was made at the request of the complainant and not at the instance of the assignees of the Bank. It is also admitted, that the tender was made by complainant to said assignees, as is set forth in said bill.

Upon this agreement of facts, it was submitted to the Court whether, under the 12th section of the act putting the Bank of Illinois into liquidation—approved Feb. 25th, 1843—the complainant is entitled to a deed from the said assignees for the property mentioned in complainant’s bill.

Cause heard by agreement on Bill and Answer. Bill dismissed, and Appeal taken by complainant.

The 12th section of the act putting the bank in liquidation, above referred to, is as follows:

“ The real estate of said bank shall be appraised by three householders, or a majority of them, on oath, to be appointed by the Judge of the Circuit Court of the county where the real estate may be situated; said real estate, when so appraised, shall be subject to sale, and shall be sold whenever thereafter the appraised value shall be offered for the same; the real estate of the said Bank shall not be sold on execution for less than two-thirds of its appraised value, to be ascertained as aforesaid.”

Bill heard before Underwood, Judge, at March term, 1850, of" Madison Circuit Court.

Billings & Parsons, for Appellants.

Statutes are to receive such a construction as must evidently have been intended by the legislature; and to ascertain this, the Court called upon to give the construction may look to the object in view—the remedy intended to be afforded, and the mischief intended to be remedied. Winslow v. Kimball, 25 Maine, 493; Kilby Bank Petitioners, 23 Pick., 93.

As to the true construction of the 12th section of the act, “ to reduce the public debt one million of dollars, and to put the . Bank of Ulinois into liquidation, laws of 1842-3. Reference is made to section 10 of said act, and sections 8 and 10 of an act entitled, “ An act to put the Bank of Illinois into liquidation.” Laws 1842-3, p. 27. Also to the ninth section of an act entitled, “An act to diminish the State debt, and put the State Bank in liquidation.” Laws 1842-3, p. 21, Sec. 10, of an act supplemental to an act to reduce the public debt, &c. Laws of 1845, p. 246; Webster et al. v. French et al., 11 Ills., 274-5.

Davis & Edwards and D. A. Smith, for Appellees.

Treat, C. J.

We are satisfied with the decree of the Circuit Court. The bill proceeds on the ground, that the assignees have no discretion in disposing of the real estate of the corporation, but are bound to sell the same to the person who first offers to pay the appraised value. We cannot acquiesce in such a construction of the several laws providing for the liquidation of the Bank. It would prevent the assignees from realizing the benefit of any advance upon the appraisement, and might materially lessen the amount which the creditors and stockholders of the institution would otherwise receive. In our opinion, the legislature designed to vest the assignees with authority to sell the real estate of the Bank, either at public or private sale, as they should deem most beneficial to those interested in the settlement of its affairs. The assignees having the right to sell the land in question, at public auction, and having exercised that right within a reasonable time, and thereby afforded the complainant an opportunity to become the purchaser, he has no just cause to complain of their action in the matter.

The decree is affirmed with costs.

Decree affirmed,