Harris v. Lester

• Decision Date: 30 September 1875
• Citation: 80 Ill. 307,1875 WL 8754
• Parties: SUSAN W. HARRISv.MOSES W. LESTER et al.
• Court: Illinois Supreme Court

80 Ill. 307

1875 WL 8754 (Ill.)

SUSAN W. HARRIS

v.MOSES W. LESTER et al.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. SAMUEL M. MOORE, Judge, presiding.

The opinion of the court gives a condensed statement of the essential facts involved in the case. The complainant appealed from the decree below. The defendants below were the parties claiming title under the executor's sale.

Mr. H. WALLER, and Mr. EDWARD ROBY, for the appellant.

Mr. GEORGE F. BAILEY, Mr. CHARLES W. GRIGGS, and Messrs. TULEY, STILES & LEWIS, for the appellees.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

Subject to the payment of his debts, Stephen A. Douglas devised all his real estate, one-half to his wife, Adele Douglas, and the other half to his two sons, Robert M. and Stephen A. Douglas. He nominated his wife and Daniel P. Rhodes as executors of his will, but only the latter qualified and took upon himself the duties of the trust imposed. Such proceedings were subsequently had in the circuit court of Cook county, where the testator had resided, and where the lands are situated, on the petition of the executor, that he was authorized, by a decree of that court, to sell, and did, in pursuance of the decree, sell all the lands of which the testator died seized, to pay the debts of the estate. The lands passed into the hands of bona fide purchasers, and many of them have since been conveyed to other parties, who have made valuable improvements, and, from that cause and the general prosperity of the country, they have risen greatly in value. Mr. Douglas died in June, 1861; his will was admitted to probate in July following, and in 1864 the sale of the property to pay debts took place.

Complainant claims to have been a creditor of the estate, but she never presented her claim, whatever it may have been, against the estate for allowance.

In 1874, Robert M. and Stephen A. Douglas, who had then become of age, conveyed, by quitclaim deed, whatever interest they had in the undivided half of the lands in controversy to complainant. The consideration named in the deed is nominal, but it is alleged the conveyance was made in consideration of the indebtedness due from the estate to her. Upon obtaining this title, complainant filed a bill for partition, claiming to be the owner in fee of one-half of the property, and that the proceedings under which the executor's sale took place were void, making defendants the unknown owners of the interest of Mrs. Douglas, and persons holding under her as parties claiming the other half, and also the purchaser at the executor's sale and parties claiming under him. She asks to have her title to one-half of the lands in controversy established, and that the proceedings of the court and the executor's sale thereunder be declared void, and removed as a cloud upon her title.

Most of defendants answering admit the death, will and seizin of the testator, and claim title under the executor's sale.

There is no controversy, the present holders all acquired title in good faith, for a valuable consideration, and with no other notice of any defect in their respective titles than what may appear on the records of the court under which the executor's sale was made. A great many objections have been taken to the validity of the proceedings under which defendants obtained their titles, but being collaterally assailed as they are, it will only be necessary to notice such as have relation to the jurisdiction of the court to pronounce the decree.

No principle of law is better settled than, where a court has jurisdiction of the subject matter and the persons of the parties, its judgment or decree, when questioned collaterally, will be held valid; and, notwithstanding the court may have proceeded irregularly, a purchaser in good faith, under its judgment or decree, will be protected. This rule has its foundation in the policy of the law, and is intended to give permanency to all judicial transactions and rights acquired thereunder.

The petition for the sale of the lands of the estate was by the executor filed in the circuit court of Cook county. It is in the usual form, and contains every material allegation necessary to give the court jurisdiction in the premises. It sufficiently appears from the record the real estate was situated in that county, and that it had been the residence of the testator. Under the statute, that court had jurisdiction to order the sale of the real estate to pay debts. The heirs of the testator and his wife, all of whom were devisees under the will, were made defendants. A summons, in the usual form, was issued against them, but was returned by the sheriff not found as to all the defendants. Our statute has made provision, where the defendants in any such proceeding are non-residents of the State, for bringing them into court by publication.

This was done, but one of the principal objections urged, as showing a want of jurisdiction in the court to pronounce the decree, is, that the affidavit of Jackson as to the non-residence of the several defendants is a nullity, and the reason assigned is, it was not entitled in any court or in any cause, nor could it be told, from it, who was the plaintiff that was suing the persons called defendants. The argument is, that such a paper is not an affidavit, but we are unable to appreciate the reasoning by which such a conclusion is reached. An affidavit is simply a declaration, on oath, in writing, sworn to by a party before some person who has authority under the law to administer oaths. It does not depend on the fact whether it is entitled in any cause or in any particular way. Without any caption whatever, it is nevertheless an affidavit.

All the statute requires in such cases is, that petitioner shall file an affidavit in the office of the clerk of the court in which his petition is pending, showing that any defendant resides or has gone out of the State, to authorize the clerk to make publication as to such defendant. It does not require the affidavit shall be in any particular form, or even that it shall be entitled in the cause. Petitioner is only required “to file with the clerk of the court in which his petition is pending an affidavit showing that any defendant resides or hath gone out of the State,” to authorize the clerk to make publication.

The record in this case discloses affirmatively an affidavit, showing that all the defendants in the proceeding in the circuit court to sell the real estate of the testator were non-residents of the State, was filed in the office of the clerk of the court in which the cause was pending, with the files of the cause, immediately before publication was made, and that is all the law requires to be done. This view of the meaning of the statute is a full and complete answer to all the subtle reasoning of counsel upon this subject. The affidavit is fully identified as having been filed in that cause, and what possible difference can it make whether the title of the cause was written on the face, above the affidavit, or on the back of it, or not at all? Upon what principle, or by what process of reasoning, however subtle, could so trifling an omission, even if the statute had directed the affidavit to be entitled in the cause, which it does not, be regarded, in a collateral proceeding, as of sufficient importance to vitiate a solemn judgment of a court of superior jurisdiction, long years after it had been pronounced, and after parties, strangers to the record, had acquired rights under it? Should courts hold judgments invalid, as having been pronounced without jurisdiction, for such unsubstantial reasons, purchasers at judicial sales would have but slight security for the titles to their property.

But a question is made as to the sufficiency of the publication notice to give the court jurisdiction of the persons of defendants, because it did not contain a “description of the premises described in the petition.” The statutory provision is, the notice shall contain “the names of the parties thereto, the title of the court, and the time and place of the return of the summons, and a description of the premises described in the petition.” The notice, in fact, contained everything the statute required it should contain, except a description of the premises to be sold, and was published for the requisite length of time.

The original records of the circuit court in which the proceedings to sell the lands of the testator were had, were destroyed by fire in 1871. All the evidence we have of the contents of the original records in that cause is derived from a certified copy of the record that was made in 1870, on the application of the widow and heirs to have the clerk make a complete record of all the files of the cause on the record books of the court, under the provisions of the statute which gives a party the right to have complete record made at his own costs. When the clerk came to make up the record, no copy of the publication notice or the publisher's certificate could be found among the files. This fact he reported to the court.

A petition was then filed by the parties interested, in which they recited the proceedings to cause a complete record to be made up, and the inability of the clerk to comply with the order, and with it brought into court what they insisted was a copy of the publication notice and a copy of the proof of publication, and asked that such copies might be filed as of the proper time, and be substituted in place of the originals so lost or mislaid, in making a complete record. On this application, the court heard ex parte affidavits, and on the 28th day of March, 1870, an order was entered finding that the publication notice, part of the files in the original cause, had been lost, and could not be found, and directed the one recited in the application be substituted in the place of the one lost, as a part of the...