John R. Moore Et Ux. v. Neil

• Citation: 1866 WL 4391,89 Am.Dec. 303,39 Ill. 256
• Parties: JOHN R. MOORE et ux.v.MADISON NEIL et al.
• Decision Date: 31 January 1866
• Court: Illinois Supreme Court

39 Ill. 256

1866 WL 4391 (Ill.)

89 Am.Dec. 303

JOHN R. MOORE et ux.

v.MADISON NEIL et al.

Supreme Court of Illinois.

January Term, 1866.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Shelby county; the Hon. CHARLES EMERSON, Judge, presiding.

The facts of this case are stated in the opinion of the Court.

Messrs. HENRY & READ, for the plaintiffs in error.

This was a bill in chancery, filed by Moore and wife against the purchasers at an administrator's sale of land, to impeach the decree under which the sale was made.

The Supreme Court, in the cases of Lloyd et al. v. Malone et al., 23 Ill. 43, and Johnson et al. v. Johnson et al., 30 Id. 223, held that an infant, aggrieved by an improper order or decree, may file an original bill for relief for errors and illegalities appearing on the face of the order or decree. See also Adams Eq. (marginal paging) 420.

The right of the complainants to file such a bill is not questioned by the defendants, either by demurrer to the bill or by the answer, and a party cannot make the objection for the first time on the hearing. Hughes v. Blake, 5 Curtis Decis. 126; Story's Eq. Pl. § 528; Mitf. Eq. Pl. 206; Cummins v. Mayor, etc., of Prooklyn, 11 Paige Ch. 602; Bank of Utica v. City, 4 Id. 400; Grandon v. Leroy, 2 Id. 509; Smith v. Haveland et al., 4 Cowen, 727, and cases there cited.

Courts of equity will take jurisdiction to set aside a cloud upon complainant's title. Pettitt v. Sheppard, 5 Paige Ch. 501; Ward v. Ward, Hayn & Ress. 226; Leigh v. Everhart, Exr., etc., 4 Monroe, 380; Hamilton v. Cummings, 1 Johns. Ch. 517; Grover v. Hugell, 3 Russ. Ch. 422; 2 Story's Eq. Jur. § 700; and Johnson et al. v. Johnson et al., 30 Ill. 224.

This is not a collateral proceeding. It is as much a direct proceeding as if the original order of sale had been brought before this court on an appeal or writ of error; in fact, it is an original bill in the nature of a bill of review. The court never acquired jurisdiction of the persons of the defendants before making the order of sale, and the order is void. The notice of publication was wholly uncertain as to where the court was to be held, as no mention is made of the county or State in it. A notice by publication takes the place of original process, and the same certainty is required that would be required in a summons. Orendorff et al. v. Stanberry et al., 20 Ill. 89. Not only is the place left uncertain, but the term is equally uncertain.

The statute authorizing the sale of real estate to pay debts, not being remedial but special and extraordinary, ought to be strictly construed; and, whatever may be the rule with regard to courts of general powers when acting within the scope of these powers, it is well settled that when they do not, and exercise a special and statutory authority, their proceeding stands on the same footing with those of courts of limited and inferior jurisdiction, and will be invalid unless the authority on which they are founded has been strictly pursued. Denning v. Corwin, 11 Wend. 647; Jackson v. Esley, 7 Id. 148; Sharp v. Spears, 4 Hill, 16; Striker v. Kelly, 7 Id. 11; Matter of Morris Square, 2 Id. 14; Williamson v. Berry, 8 How. 495; Williamson v. Ball, Id. 566; Matter of Flatbush Avenue, 1 Barb. 289; Buskett v. Drummond, 1 B. & C. 153; Christie v. Unwin, 11 A. & E. 373; Mayhew v. Davis, 4 McLean, 213; M. Berry v. Connor, 3 Comst. 511.

No order of sale can be made until the claims against the estate have been probated and allowed. Davenport v. Young et ux., 16 Ill. 552; Dorman v. Lane, 1 Gilm. 143; Dorman et al. v. Tost et al., 13 Id. 130; Rev. Stat. 1845, § 125, title “Wills,” p. 562.

The petition shows that the administrator never filed an appraisement bill and sale bill of the personal property as required by section one hundred and eight of Revised Statutes of 1845, title “Wills,” page 559. The statement in the petition that there were only ten bushels of corn and no other personal property belonging to the estate, fraudulently made by the administrator, as against infant heirs, will not relieve him from a compliance. The statute is mandatory and must be obeyed. A compliance with this section must be shown in order to confer jurisdiction upon the court. Young et al. v. Dowling, 15 Ill. 486; Bright v. Boyd, 1 Story, 478.

There was no evidence offered in support of the allegations of the petition, and the decree was made on the naked answer of the guardian ad litem without proof, which is manifestly erroneous, where the proceedings are against infants. Bennett et al., Exrs., etc., v. Whiteman et al., 22 Ill. 454; Chapin v. The Heirs of Kimball, 23 Id. 38; Fridley et al. v. Murphy, Admr., etc., 25 Id. 147.

Again, no amount by the order of sale is found to be due from said estate, which is essential to its validity. Bennett et al., Exrs., etc., v. Whiteman et al., 22 Ill. 454, 455.

The certificate of the printer to the notice of publication is wholly insufficient to bring the defendants into court; it is neither a literal nor a substantial compliance with the requirements of the statute; it does not state the date of the first and last publication. See § 1, chap. 3, Rev. Stat. 1845, p. 47.

Messrs. STUART, EDWARDS & BROWN, for the defendants in error.

The case of Johnson et al. v. Johnson et al. does not decide that in every case of a void decree without fraud, a bill may be maintained. In this case the remedy at law is perfect and adequate. The complainant is and has been for six or seven years of full age.

In the case of Loyd et al. v. Malone, 23 Ill. 42, the complainants were at the time infants. The court, in the opening of the opinion, speak of the lands as “the property of the complainants who are infants.” The decree obtained by the administrator was not void. The notice and certificate were sufficient. Gibson v. Roll, 27 Ill. 91; Stow v. Kimball, 28 Ill. 107, 108.

This is in effect a collateral proceeding, and the title of the purchasers cannot be affected by any error in the decree not rendering it void. Gray v. Brignardello, 2 Wallace, U. S. Supreme Court Reports, p. 642.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was a bill in chancery brought by the plaintiffs in error to the March Term, 1863, of the Shelby Circuit Court, to set aside a sale of real estate, made under a decree of the same court, rendered at the May Term, 1842, authorizing the administrator of John B. Smith to sell certain real estate for the payment of debts. The defendants answered, setting up their various titles under the sale, and, on the hearing, the Circuit Court dismissed the bill.

The only objection to the proceedings which goes to the jurisdiction of the court, is based upon the alleged insufficiency of the administrator's notice. That is in the following form:

“Notice is hereby given to William Smith and Sarah Smith, heirs at law of John B. Smith, deceased, that I will present a petition at the next term of the Shelby Circuit Court, to be holden at the court-house in Shelbyville, on the fourth Monday in the month of May next, to the judge of said court, for the sale of the whole or as much of the real estate of said John B. Smith, deceased, as will be sufficient to satisfy the debts against said estate, at which time and place you and all persons interested are requested to attend, and show cause, if any can, why said real estate should not be sold for the purposes aforesaid.

A. THORNTON for petitioner.

WM. BONE,

Admr. of John B. Smith, deceased.

March 15th, 1842. I hereby certify that the above notice to the heirs at law of John B. Smith, deceased, was published six successive weeks prior to the May Term of Shelby Circuit Court, for 1842, in the Shelbyville Herald.

J. C. DUNCAN, Publisher.”

It is objected to this notice that it does not specify in what county or State the court was to be held at which application was to be made. It does specify “the Shelby Circuit Court to be holden at the court-house in Shelbyville.” The notice was inserted in a newspaper published in Shelby county, and the language of the advertisement was a sufficient designation of the county, and one which no human being who read it could have misunderstood. So also as to the absence from the notice of the name of the State. No person who read the notice in a paper published in Shelby county, could have doubted for one moment that “the Shelby Circuit Court to be holden in the court-house at Shelbyville,” referred to Shelby county in the State of Illinois. A notice with this same alleged defect was held sufficient in Gibson v. Roll, 27 Ill. 92, and in Goudy v. Hall, 36 Ill. 313. Titles of purchasers in good faith should never be overturned upon this species of captious criticism.

It is further objected that the certificate of publication is defective in not stating the first and last days of the publication. The decree of the court, however, recites as follows: ...