1. Under the statute of Illinois authorizing the sale of real
estate of a decedent and directing the executor or administrator to
make out a petition to the county court "stating therein what real
estate the said testator or intestate may have died
seized
of," a statement of the real estate which he died
leaving is a sufficient compliance with the statute.
2. Where a statute of Illinois enacted that
"In all cases where an intestate shall have been a nonresident
or without a widow, &c., but having property in the state,
administration should of the proper county, and no one else,"
held that where a person to whom letters of
administration on the estate of a nonresident applied, under the
statute referred to in the paragraph above, to have a sale of his
property, and the court, having jurisdiction of the subject,
ordered the sale, it would not be presumed that he was not the
public administrator.
3. Where, under the same statute (the one referred to in the
first of the above two paragraphs), an administrator gave public
notice that he meant to apply to have a power to sell the
decedent's lands, stating that it belonged to him, and describing
the several pieces in this way:
Parts of Sections Township Range
S.E. 4 1 S. 4 W.
S.W. 24 3 N. 8 W.
"All the above lands being
recorded north
or
south of the baseline, and east and west of the fourth principal
meridian,"
And the petition prayed to sell the decedent's land, describing
it as:
S.E. 4 1 S. 4 W.
S.W. 24 3 N. 8 W.
Page 83 U. S. 353
Held, that the notice was correct, and the description
in the petition, aided by the notice, sufficient.
4. A purchaser at judicial sale by an administrator, does not
depend upon a return by the administrator making the sale, of what
he has done. If the preliminary proceedings are correct, and he has
the order of sale and the deed, this is sufficient for him.
5. Where jurisdiction has attached, whatever errors may occur
subsequently in its exercise, the proceeding being
coram
judice, cannot be impeached collaterally except for fraud.
6. A purchaser at a judicial sale is a "purchaser" within the
recording acts of Illinois enacting that unrecorded deeds shall
take effect as to "subsequent purchasers" without notice after the
time for filing the same for record, and not before.
Turner, alleging that he "was possessed as of his own demesne in
fee" of the same, brought
ejectment against McNitt and
another for a piece of land, "situate in the county of Brown, and
State of Illinois," and described as follows, to-wit:
"The southeast quarter of section four (4) in township one (1)
south, of range four (4) west in said county of Brown."
Both plaintiff and defendant admitted title in one Samuel
Spotts.
THE PLAINTIFF claimed through a decree of sale made on prior
proceedings, by the Circuit Court of Adams County, Illinois, after
Spotts's death. The validity of this title depended on the
interpretation to be given to certain statutes, and on the validity
of a certain notice, thus:
A statute of Illinois, relating to wills, enacts: [
Footnote 1]
"SECTION 51. In all cases where the intestate shall have been
a nonresident or without a widow, next of kin, or
creditors in this state, but having property within the state,
administration shall be granted to the
public
administrator of the proper county,
and to no other
person."
Another enactment provides:
"SECTION 98. When any executor or administrator, whose
Page 83 U. S. 354
testator or intestate shall have died seized of any real estate
in this state, shall discover or suspect that the personal estate
of such testator or intestate is insufficient to pay the just
claims against his or her estate, such executor or administrator
shall, as soon as conveniently may be, make a just and true account
of the said personal estate and debts, as far as he or she can
discover the same, and shall make out a petition to the Circuit
Court of the county in which administration shall have been
granted,
stating therein what real estate the said testator or
intestate died seized of, or so much thereof as will be
necessary to pay his or her debts as aforesaid, and to request the
aid of the said court in the premises. [
Footnote 2]"
SECTION 104 provides that the court shall examine the
allegations and proofs, and if it appear that the personal estate
is insufficient to pay the debts, the court shall direct the
sale.
SECTION 105 provides that the conveyance made under the order of
sale shall be effectual against all claiming through the intestate
or his heirs.
SECTION 106 provides how the sales shall be made, imposes a
penalty for selling contrary thereto, and declares that no
irregularity in the sale shall affect the validity of the
title.
With these provisions in force, Archibald Williams, to whom the
probate justice for Adams County had granted, November 24, 1837,
letters of administration on the estate of Spotts, describing him
as "of the City of New Orleans, Louisiana," gave in the Quincy
Whig, for four weeks (the first publication being July 21, 1838),
the following
"
NOTICE"
"The subscriber, as
administrator of the estate of
Samuel Spotts, deceased, will make application to the Circuit Court
of Adams County, and State of Illinois, at the next September Term
thereof, for leave to sell the following real estate, belonging to
the said Samuel Spotts, or so much thereof as will be sufficient to
pay his debts, his personal estate being insufficient to pay the
same. All persons interested in said estate are requested
Page 83 U. S. 355
to show cause, if any they have, why it should not be sold for
the purposes aforesaid."
Parts of Sections Township Range.
S.E. 4 1 S. 4 W.
S.W. 24 3 N. 8 W.
S.W. 15 10 N. 3 E.
S.E. 26 13 S. 2 W.
N.W. 36 4 N. 6 W.
N.W. 23 5 N. 7 W.
S.W. 7 9 N. 5 E. [
Footnote
3]
"All of the above land being
recorded north
or
south of the base line, and east and west of the fourth principal
meridian."
"ARCHIBALD WILLIAMS"
"Administrator of Samuel Spotts, deceased"
The notice having been thus given, Williams presented a petition
or "bill" to the Circuit Court of the said County of Adams setting
forth these letters and setting forth that Spotts had died
intestate before the 1st of January, A.D. 1836, "leaving" in
Illinois certain real estate described in the copy of the
inventory, marked Exhibit A, filed herewith.
[The inventory (purporting to be "an inventory of the real
estate belonging to the
estate of Samuel Spotts,
deceased") then set forth thirty-one quarter sections of land,
described in this style:
S.E. 4 1 S. 4 W.
S.W. 24 3 N. 8 W.
S.W. 15 10 N. 3 E.
S.E. 26 13 S. 2 W.
N.W. 36 4 N. 6 W.
N.W. 23 5 N. 7 W.
S.W. 7 9 N. 5 E.]
The petition or "bill" further set forth personal property to
the value of $5, and debts to the amount of $19,599, as appeared by
an account thereof, annexed, and it prayed an order of sale of so
much of the real property as would pay the debts.
Page 83 U. S. 356
The bill was exhibited against no one by name; no persons were
made parties to it. Proof being made to the court of the
publication as above mentioned of the "Notice," the court,
reciting
"that it appeared to it that the allegations in the said bill
were true, and that due publication had been made of the intention
to apply to this Court for permission to sell
the lands in the
said bill mentioned,"
decreed, September 14 -- its September Term -- 1838, a sale of
them, or of so much as would pay the debts. The administrator made
no report of sales until the 30th of August, 1851. He then reported
that he had, on the 17th day of June, 1839, in pursuance of the
decree, sold thirty-one quarter sections of land, one of which was
the "S.E. 4, 1 S. 4 W.," which was reported as sold to one
Hennen.
Through this sale and a chain of mesne conveyances, beginning
with the heirs-at-law of Hennen, it was that the plaintiff
claimed.
It was proved that the premises were situated in what is known
as "The Military Bounty Tract."
THE DEFENDANT claimed through a deed (to one John Lucas), made
in Spotts's lifetime -- that is to say, through a deed dated
September 12, 1820, which deed, however, had not been recorded
until January 2, 1864. Whether the deed was operative depended on
the interpretation to be given to a statute in force, alike when
the deed was made, when it was recorded, and now, [
Footnote 4] and which enacts:
"SECTION 22. Deeds and other instruments relating to or
affecting title to real estate, shall be recorded in the county
where such real estate is situated."
"SECTION 23. All deeds, mortgages, or other instruments of
writing, which are required to be recorded, shall take effect and
be in force after the time of filing the same for record,
and
not before, as to all creditors and
subsequent
purchasers, without notice, and all such deeds and title papers
shall be adjudged
void as to all such creditors
and
subsequent purchasers without notice, until the same shall be
filed for record. "
Page 83 U. S. 357
The court charged that the plaintiff, Turner, had shown title
and was entitled to recover. The defendant excepted, the exception
being in this general form:
"To which opinion and decision of the court the defendant then
and there excepted at the time of the charge."
The defendants then asked the court to charge,
"(1) That the deed from Spotts to Lucas and the subsequent deeds
in that chain of title conveyed the fee of the premises in question
to McNitt."
"(2) That the deed from Spotts to Lucas having conveyed the
premises to Lucas, Spotts did not die seized of them, and that they
were therefore not liable to be sold by his administrator for the
payment of his debts, and that the decree of sale was void."
"(3) That Spotts having conveyed to Lucas before the proceeding
in the Circuit Court of Adams County was instituted by Williams, no
title passed by the deed of Williams to Hennen, and hence none by
the subsequent mesne conveyances to Turner."
The court refused thus to charge, and the defendants again
excepted.
Verdict and judgment having gone for the plaintiff, the
defendants brought the case here.
Page 83 U. S. 359
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the United
States for the Southern District of Illinois.
Page 83 U. S. 360
The defendant in error brought two separate actions of ejectment
in the court below, one against each of the plaintiffs in error.
They were landlord and tenant, and by consent of the parties the
actions were consolidated. The plaintiff recovered the premises in
controversy. The defendants thereupon brought this writ of
error.
The chain of title relied upon by the respective parties was as
follows:
Turner gave in evidence a patent from the United States to Louis
F. Lefay, dated October 23, 1818; a deed from Lefay to Samuel
Spotts, dated December 19, 1818, and recorded in the proper county
March 22, 1820; the proceedings of the Circuit Court of Adams
County, in Illinois, touching a decree of sale made by that court
upon the application of Archibald Williams as the administrator of
Spotts, and a sale made accordingly; a deed by the administrator to
Duncan N. Hennen, the purchaser, dated June 17, 1839, recorded
April 3, 1841; and a chain of mesne conveyances extending from the
heirs-at-law of Hennen down to Turner, the plaintiff in the court
below.
The defendants gave in evidence a deed from Spotts to John
Lucas, dated September 12, 1820, recorded January 2, 1864, and a
sequence of deeds from Lucas down to McNitt, one of the plaintiffs
in error. McNitt was in possession of the premises.
The court instructed the jury that Turner had shown title, and
was entitled to recover. To this the defendants excepted.
The defendants then asked the court to instruct the jury:
That the deed from Spotts to Lucas and the subsequent deeds in
that chain of title conveyed the fee of the premises to McNitt.
That the deed from Spotts to Lucas having conveyed the premises
to Lucas, Spotts did not die seized of them, that they were
therefore not liable to be sold by his administrator for the
payment of his debts, and that the decree of sale was void.
That Spotts having conveyed to Lucas before the proceeding in
the Circuit Court of Adams County was instituted by
Page 83 U. S. 361
Williams, no title passed by the deed of Williams to Hennen, and
hence none by the subsequent mesne conveyances to Turner.
These instructions the court refused to give, and the defendants
excepted.
A few remarks will be sufficient to dispose of this exception.
All the instructions relate to the deed of Spotts to Lucas.
The decree of sale was made by the court at the September term,
1838. The sale to Hennen was made on the 17th of June, 1839. The
deed of Williams to him was made on the 17th of June, 1839, and
recorded April 3, 1841. The deed of Spotts to Lucas, though made on
the 12th of September, 1820, was not recorded until January 2,
1864. The 22d section of statute of Illinois, in force at both
these periods and still in force, provides that "deeds and other
instruments relating to or affecting title to real estate shall be
recorded in the county where such real estate is situated." The
next section is as follows:
"Sec. 23. All deeds, mortgages, or other instruments of writing
which are required to be recorded shall take effect and be in force
after the time of filing the same for record,
and not
before as to all creditors and
subsequent purchasers,
without notice, and all such deeds and title papers shall be
adjudged void as to all such creditors
and subsequent
purchasers without notice until the same shall be filed for
record."
The term "purchasers" as used in this statute includes
purchasers at judicial sales. A deed not filed for record is as to
them wholly without effect. It is in all respects, so far as they
are concerned, as if it did not exist. The maxim applies,
De
non apparentibus et de non existentibus eadem est ratio.
[
Footnote 5]
Seizin was originally the completion of the feudal investiture.
In American jurisprudence, it means generally ownership.
Page 83 U. S. 362
The covenant of seizin and the covenant of right to convey are
synonymous. [
Footnote 6]
The deed from Spotts to Lucas cannot affect any question arising
in the case, and must be excluded from consideration. All the
instructions asked by the plaintiffs in error assumed its efficacy
for the purposes to which they referred. The instructions were
therefore properly refused.
It is assumed in the assignment of errors and in the printed
arguments of the learned counsel for the plaintiffs in error, that
the admission in evidence of the record from the Circuit Court of
Adams County, was objected to, the objection overruled, and
exception taken. No such exception appears in the record.
In an action of ejectment, the plaintiff must recover, if at
all, upon the strength of his own title. The weakness of his
adversary's cannot avail him.
The only exception which remains to be considered is to the
charge of the court that the plaintiff had shown title in fee and
was entitled to recover. That exception is thus set out in the
record: "To which opinion and decision of the court the defendant
then and there excepted, at the time of the said charge." The chain
of the plaintiff's title, as exhibited on the trial, consisted of
many links. The exception should have pointed out specifically the
link or links deemed defective, and in what the defect was supposed
to consist, in order that the court might be duly notified and have
an opportunity to correct the error, if any, into which it had
fallen. The exception is insufficient. But this objection has not
been insisted upon by the counsel for the defendant in error. We
shall therefore consider the case as if the exception were
sufficiently full and specific to meet the requirements of the rule
upon the subject.
The objections taken to the title of the defendant in error are
all confined to the judicial proceedings touching the sale by the
administrator. Those objections, so far as it is necessary to
consider them, are:
Page 83 U. S. 363
That the seizin of Spotts, at the time of his decease, is
neither averred nor shown, and that the contrary appears.
That the authority to sell was given to Williams, the
administrator, specially appointed, when the general administrator
for the county should have been appointed, and the authority given
to him, and that the description of the premises in the petition of
the administrator is insufficient and a nullity.
It is insisted that these defects are jurisdictional, and that
the proceeding was
coram non judice and void.
The petition sets forth
"that the said Samuel Spotts heretofore, to-wit, before the
first day of January, A.D. 1836, died,
leaving in this
state the real property described in the copy of the inventory
marked 'Exhibit A,' filed herewith."
The term
leaving, used in this connection, is the
synonym of
owning. It is idiomatic rather than dialectic,
and is believed to obtain in this sense throughout the country
where so applied. This is sufficient. Such a petition need not
follow the language of the statute and be drawn with the accuracy
of an indictment. Nothing is required but the substance of what is
necessary to be stated, intelligibly expressed. The deed of Spotts
to Lucas is relied upon to disprove the seizin. That deed, we have
shown, can have no such effect. The record of deeds in the proper
office, as it stood, showed the seizin of the decedent, and that
was sufficient. No one was bound to look further, and it was
conclusive upon all concerned.
It does not appear that Williams was not the public
administrator, and if he were not, that there was any such officer
for Adams County at that time. If there was not, the appointment of
Williams was proper. Error must be shown. It is not to be inferred,
except where the inference is inevitable. Everything consistent
with the record which would have warranted the appointment, will be
presumed to have existed and to have been found and acted upon by
the court. [
Footnote 7] Acts
done which presuppose the existence of
Page 83 U. S. 364
other acts, to make them legally operative, are presumptive
proofs of the latter. [
Footnote
8] These views render it unnecessary to consider the
construction of the statute contended for by the counsel for the
defendant in error, whereby, in effect,
and would be
substituted for "
or;" and also the question whether the
statute, not declaring an appointment made contrary to its
provisions void, is not merely directory. [
Footnote 9] It was certainly within the jurisdiction of
the court to decide both these points. The form of the letters
issued to the general administrator, and to other persons when
appointed, is the same. [
Footnote 10]
It is insisted that the description contained in the petition is
so defective by reason of the omission to name the meridian east or
west of which the land is situated, that its terms are equally
applicable to another tract in another county. Admitting this to be
so, it is averred in the petition, and shown by the evidence, that
the tract in question belonged to Spotts, while no such fact
appears as to the other tract, and it is not pretended that it
exists. This is sufficient. The decree finds all the allegations of
the petition to be true. Proof of the ownership by Spotts of the
tract sold was admissible to locate the description upon the proper
premises, and to remove the ambiguity which was found to exist. In
the case of Dougherty v. Purdy, [
Footnote 11] as in this case, the meridian was omitted in
the description, and the ambiguity was the same as here.
The land is correctly described in the schedule attached to the
notice of the intended application to the court for authority to
sell. This might be resorted to, if necessary, to supply the defect
in the petition subsequently filed. [
Footnote 12] It will be presumed that the land described
in the petition is the same with that described in the notice, as
the descriptions harmonize as far as the former extends. Under
certain circumstances
Page 83 U. S. 365
an averment fatally defective in a declaration may be remedied
by a fuller averment in the replication. [
Footnote 13]
It was proved upon the trial of this case that the premises are
situated in the Military Bounty Tract. We take judicial notice of
the fact that this entire tract is situated between the Illinois
and Mississippi Rivers, and all of it west of the fourth principal
meridian. This also identifies the land in question. [
Footnote 14] The judicial
proceedings are not defective in the particular under
consideration.
The deed of the administrator to Hennen, made pursuant to the
sale, is correct. No exception was taken to it. The fact that the
report of the sale by the administrator, found in the clerk's
office after his death, was not filed, approved, and recorded until
the 30th of May, 1851, is unimportant. In
Wheaton v.
Sexton, [
Footnote 15]
there had been a sale under execution and a deed by the marshal.
The execution was never returned. This Court said:
"The purchaser depends upon the judgment, the levy, and the
deed. All other questions are between the parties to the judgment
and the marshal. Whether the marshal sells before or after the
return, whether he makes a correct return or any return at all to
the writ, is immaterial to the purchaser, provided the writ was
duly issued and the levy made before the return."
The notice was correct. [
Footnote 16] This has not been seriously questioned. The
word "recorded" in the sentence at the foot of the list of lands is
evidently a misprint for situated. It may be so read or regarded as
surplusage. In either case, the effect will be the same.
But there is a comprehensive and more conclusive answer to all
the objections to the sale which have been considered, and to
others suggested which have not been adverted to.
Upon the filing of the notice with the proof of publication, and
the subsequent filing of the petition of the administrator for
authority to sell, the circuit court had jurisdiction of the case.
No presumption on that subject is necessary.
Page 83 U. S. 366
Jurisdiction is authority to hear and determine. It is an
axiomatic proposition that when jurisdiction has attached, whatever
errors may subsequently occur in its exercise, the proceeding being
coram judice, can be impeached collaterally only for
fraud. In all other respects it is as conclusive as if it were
irreversible in a proceeding for error. The order of sale before us
is within this rule.
Grignon's Lessee v. Astor et al.
[
Footnote 17] was, like
this, a case of a sale by an administrator. In that case this Court
said:
"The purchaser under it is not bound to look beyond the decree.
If there is error in it of the most palpable kind, if the court
which rendered it have, in the exercise of jurisdiction,
disregarded, misconstrued, or disobeyed the plain provisions of the
law which gave them the power to hear and determine the case before
them, the title of the purchaser is as much protected as if the
adjudication would stand the test of a writ of error; and so where
an appeal is given, but not taken, in the time allowed by law."
This case and the case of
Voorhees v. Bank of the United
States [
Footnote 18]
are the leading authorities in this Court upon the subject. Other
and later cases have followed and been controlled by them.
Stow
v. Kimball [
Footnote
19] affirms the same doctrine.
Judgment affirmed.
[
Footnote 1]
Gales' Statutes of Illinois 698.
[
Footnote 2]
Gales' Statutes of Illinois, 711; Revised Statutes of Illinois
of 1845, pp. 558, 559, ยงยง 103, 104, 105, 106.
[
Footnote 3]
There were in all thirty-one quarter sections mentioned. The
seven here given, show the style of the notice herein.
[
Footnote 4]
Revised Statutes of Illinois of 1845, 108.
[
Footnote 5]
Martin v. Dryden, 1 Gilman 187;
Curtis v.
Root, 28 Ill. 367;
Cook v. Hall, 1 Gilman 575;
see also Choteau v. Jones, 11 Ill. 300;
Kennedy v.
Northrup, 15
id. 148;
Brookfield v.
Goodrich, 32
id. 363.
[
Footnote 6]
Rawle on Covenants for Title, 34;
Browning v. Wright, 2
Bosanquet & Puller 14; 1 Washburn on Real Property 35.
[
Footnote 7]
Conrad Schnell v. City of Chicago, 38 Ill. 382.
[
Footnote 8]
Bank of the United States v.
Dandridge, 12 Wheat. 70.
[
Footnote 9]
Sedgwick on Statutory and Common Law 368.
[
Footnote 10]
Gales' Statutes 702, sec. 62.
[
Footnote 11]
18 Ill. 207.
[
Footnote 12]
Schnell v. Chicago, 38 Ill. 383.
[
Footnote 13]
Lafayette Insurance Co. v.
French, 18 How. 405.
[
Footnote 14]
White v. Herman, 51 Ill. 245.
[
Footnote 15]
17 U. S. 4 Wheat.
503.
[
Footnote 16]
Goudy v. Hall, 36 Ill. 313.
[
Footnote 17]
43 U. S. 2 How.
341.
[
Footnote 18]
35 U. S. 10 Pet.
449.
[
Footnote 19]
28 Ill. 93.
