Fell v. Young

• Decision Date: 31 January 1872
• Citation: 1872 WL 8118,63 Ill. 106
• Parties: KERSEY H. FELLv.EDWARD R. YOUNG.
• Court: Illinois Supreme Court

63 Ill. 106

1872 WL 8118 (Ill.)

KERSEY H. FELL

v.EDWARD R. YOUNG.

Supreme Court of Illinois.

January Term, 1872.

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge presiding.

Messrs. WILLIAMS & BURR, for the appellant.

Messrs. STEVENSON & EWING, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of ejectment in the McLean county circuit court, brought by Edward R. Young against Kersey H. Fell, for portions of section twenty-eight and section thirty-three, containing in all less than one acre of land.

There was a verdict and judgment for the plaintiff, to reverse which the defendant appeals. It is admitted plaintiff proved title to the portion of section twenty-eight.

In his deraignment of title to the portion of section 33 sued for, plaintiff offered in evidence a deed of conveyance bearing date July 30, 1835, purporting to have been executed by William Dunley as administrator of James McGoosh, deceased, which included the premises in question in that section. McGoosh was the patentee from the United States.

The defendant objected to the introduction of this deed on the ground, first, that no authority in the administrator to execute it was shown; second, because it was not properly acknowledged, and third, because it did not conform to the statute.

These objections were overruled and exceptions taken, whereupon the plaintiff offered in evidence a decree of the McLean circuit court, purporting to have been entered at the April term, 1835, of that court, on the petition of William Dunley, administrator of James McGoosh, deceased, to sell the land of his intestate to pay his debts.

The defendant objected to the introduction of this evidence, and the court sustained the objection.

The case was put to the jury upon the naked deed of the administrator, which does not show on its face any authority to the administrator to execute it.

The deed recites the order of the court directing a sale of decedent's land, in which there is no recital, and it does not appear that the notice required by law, or any notice whatever, was given by the administrator of the time and place of presenting the petition, or that the parties interested in the land had any notice of the proceeding to divest them of their title. Every person dying is presumed to leave heirs capable of inheriting, ( Harvey v. Thornton, 14 Ill. 217), and before a decree can pass against them to divest them of their title to the decedent's property, the notice required by law must be given them. In the absence of notice, the court will have no jurisdiction of their persons. The law in force at the time this petition was filed, required the administrator, who desired an order to sell the land of his intestate to pay debts, to give at least thirty days' notice of the time and place of presenting such petition, by serving a written notice of the same, together with a copy of the account and petition on each of the heirs or their guardians, or devisees of the testator or intestate, or by publishing a notice in the nearest newspaper, for three weeks successively, commencing at least six weeks before presenting the petition, of the intention of presenting it. Rev. Laws 1833 p. 644.

This court has so often ruled in cases like this, that it is necessary only to refer to some of the cases. In Herdman v. Short, 18 Ill. 59, it was held, in a proceeding by an administrator to sell the real estate of his intestate, unless the mode pointed out by the statute for bringing the parties interested before the court is pursued, there will be such a want of jurisdiction as will vitiate the order of sale. To the same effect are Gibson v. Roll, 27 Ill. 88, Clark v. Thompson, 47 Ill. 25, Botsford v. O'Connor, 57 Ill. 72, and Donlin v. Hettinger et al., Id. 348.

No authority having been shown authorizing the administrator of McGoosh to sell this land, the deed is invalid and could not be used as a muniment of title.

But it is said by appellee there was a decree and order of sale offered in evidence which was improperly excluded by the court; that the presumption of law is in favor of the jurisdiction of a court of general jurisdiction, such as is the circuit court, over the person; that the order of sale was embraced in the...