Bowen v. Bowen, 265 Ill. 638 (1914)

Dec. 16, 1914 · Illinois Supreme Court

265 Ill. 638

James C. Bowen et al. Appellees, vs. Oscar Bowen et al. Appellants.

Opinion filed December 16, 1914.

1. Judicial sales—master should offer land in parcels if same is susceptible of division. It is the duty of the master in chancery in making a sale to offer the land in parcels if the same is susceptible of division, and if he fails to do so and the land is thereby sold for an inadequate price the sale will be set aside.upon a proper showing.

2. Same—when one objecting to confirmation of report of sale must make proof. It is not sufficient for a party to assert, by way of objection to the confirmation of the report of sale, that the lands were susceptible of division and were sold for an inadequate price because they were not offered in separate tracts, but he must sustain his charges by proof.

3. Same—some showing must be made even though rights of minor are involved. While the rules with respect to upholding judicial sales are relaxed where the interest of a minor is involved, yet there must be some showing before the court will be warranted in setting aside a sale.

Appeal from the Circuit Court of Vermilion county; the Hon. William B. ScholEiELD, Judge, presiding.

A. B. Dennis, for appellants.

H. A. Swallow, for appellees.

Mr. Justice Cooke

delivered the opinion of the court:

The appellants, Oscar Bowen, Goldie Bowen Henning and Fred Bowen, were defendants to a bill for partition in the circuit court of Vermilion county. A decree for partition was entered and commissioners appointed, who reported the lands indivisible. The master thereupon sold the lands, pursuant to a decree of sale, to appellees, who were the complainants in the bill. On June 16, 1914, the master 'filed his report of sale, and on the same day Oscar Bowen and Goldie Bowen Henning, two of the appellants, who were each entitled to. a distributive share of the proceeds of the sale, filed their motion to set aside the report of the commissioners, and also filed exceptions to the master’s report of sale and objected to the confirmation of the sale for the following reasons: That the master did not offer any part of the lands for sale in parcels although the same is susceptible of being divided into four parts, but that the same was sold en masse; that parties were present at the sale for the purpose of bidding upon different parts of the land who did not care to buy all the property, naming the parties who were alleged to be so present; that these parties would have bid for the different tracts, had the land been offered in parcels, sums aggregating about $4000 more than the amount for which the property was sold. No affidavits were filed in support of the exceptions to the report of sale and the objections to its confirmation, nor in support of the motion made on the same day to set aside the report of the commissioners upon the ground that the premises were divisible, and no testimony was taken as to these matters. The court thereupon, on June 17, overruled‘the motion to set aside the report of the commissioners and the exceptions to the report of sale and entered an order approving the report of sale and allowing an appeal to Oscar Bowen and Goldie Bowen Henning upon the filing'of a bond in the sum of $300 within thirty days, to be approved by the clerk. Thereafter, during the same term of court, and on July 10, the three appellants joined in a motion to set aside the order of- the court theretofore entered on June 17 approving the report of the commissioners and the order approving the master’s report of sale and allowing an appeal to Oscar Bowen and Goldie Bowen Henning, and asked leave to file exceptions to the report of the commissioners and to the master’s report of sale, which exceptions, and- affidavits in support of the same, were attached to and made a part of the motion. The court denied this motion and allowed an appeal from the order upon the appellants giving bond in the sum of $300 within thirty days from June 17, 1914, to be approved by the clerk. The present appeal was perfected from the order of June 17 denying the motion of Oscar Bowen and Goldie Bowen Henning to set aside the report of the commissioners and overruling the exceptions to the master’s report of sale.

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. It is not sufficient for the objectors to merely assert,, by way of objection to the report, that .the lands were susceptible of division and not having been offered in separate tracts or parcels an inadequate price was thereby realized from the sale. These charges must be sustained by proof. Appellants having failed to offer any proof in these particulars the court properly overruled the exceptions and confirmed the master’s report of sale.

No showing whatever was made in support of the motion to set aside the report of the commissioners, and for that reason that motion was properly denied.

It is contended that as appellant Fred Bowen is a minor the court will require less proof of irregularity in the making of the sale than in a case where the parties are all adults. While it is true that the rules are relaxed in the case of minors, still-there must be some showing before the court is warranted in taking action. In this case there was no showing whatever.

The affidavits filed in support of the motion of- July 10 cannot be considered on this appeal as they were not before the court for consideration at the time the order herein appealed from was entered. "

The decree of the circuit court is affirmed.

Decree affirmed.