Mccormack v. Kimmel

• Decision Date: 31 July 1879
• Citation: 4 Bradw. 121,4 Ill.App. 121
• Parties: WILLIAM B. MCCORMACK ET AL.v.MARY A. KIMMEL.
• Court: United States Appellate Court of Illinois

4 Ill.App. 121

4 Bradw. 121

WILLIAM B. MCCORMACK ET AL.

v.MARY A. KIMMEL.

Appellate Court of Illinois, Fourth District.

July Term, 1879.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Williamson county; the Hon. M. C. CRAWFORD, Judge, presiding. Opinion filed August 1, 1879.

Mr. WILLIAM J. ALLEN, for plaintiff in error; that when the court has jurisdiction of the person and subject-matter, the title of the purchaser will be protected, cited Mulford v. Stalzenback, 46 Ill. 303; Myer v. McDougal, 47 Ill. 278; Moore v. Neil, 39 Ill. 256; Hobson v. McEwan, 62 Ill. 146; Moffitt v. Moffitt, 69 Ill. 641; Walker v. Diehl, 79 Ill. 473; Bostwick v. Skinner, 80 Ill. 147; Bowen v. Bond, 80 Ill. 351.

The County Court has general jurisdiction over sale of lands to pay debts: Hobson v. McEwan, 62 Ill. 146; Moffitt v. Moffitt, 69 Ill. 641; Propst v. Meadows, 13 Ill. 157.

The widow may abandon or release the homestead: Buck v. Conlogue, 49 Ill. 391; Clubb v. Wise, 64 Ill. 157; Shepard v. Brewer, 65 Ill. 393; Wright v. Dunning, 46 Ill. 271.

Complainant is estopped by the deed of release of her mother: Bigelow on Estoppel, 267; 3 Bouv. Inst. 373.

Mr. ANDREW D. DUFF, for defendant in error; that if the court had no jurisdiction the sale is void, and a purchaser takes nothing by his deed, cited Campbell v. McCahen, 41 Ill. 45; Kinney v. Knoebel, 51 Ill. 113.

The statute as to bringing parties into court in such proceeding must be strictly complied with: Reynolds v. Wilson, 15 Ill. 394; Herdman v. Short, 18 Ill. 59; Turney v. Turney, 24 Ill. 625; Clark v. Thompson, 47 Ill. 25.

Necessity of sale for debts is a jurisdictional fact, and must appear in the petition: Tost v. Dorman, 13 Ill. 127; Walker v. Diehl, 77 Ill. 473; Davenport v. Young, 16 Ill. 548; Fitzgerald v. Glancy, 49 Ill. 465; Farrar v. Dean, 24 Mo. 16; Rorer on Judicial Sales, § 237.

The widow cannot abandon the homestead to the prejudice of the minor heirs: Vanzant v. Vanzant, 23 Ill. 536; Walters v. The People, 21 Ill. 178; Miller v. Marckle, 27 Ill. 402; Brinkerhoof v. Everett, 38 Ill. 263; Hubbell v. Canady, 58 Ill. 425.

No sale by the administrator could pass homestead rights: Green v. Marks, 25 Ill. 221; Hoskins v. Litchfield, 31 Ill. 137; Smith v. Miller, 31 Ill. 158; Wing v. Cropper, 35 Ill. 256; Moore v. Titman, 33 Ill. 358; Pardee v. Lindley, 31 Ill. 186; Silsbee v. Lucas, 36 Ill. 462; Wiggins v. Chance, 54 Ill. 175; Conklin v. Foster, 57 Ill. 104.

WALL, J.

The appellee filed her bill in Chancery in the Circuit Court of Williamson County, April term, 1874, against the appellants, for the purpose of setting aside the proceedings of the County Court of said county, March term, 1864, ordering the sale of the real estate of Joseph Herrin, deceased, to pay debts; Joseph Herrin, the father of appellee, died intestate, January, 1856, leaving his widow, Miriam L. Herrin, since intermarried with David McIntruff, and appellee his only child, him surviving. He was seized of the land in controversy, and was the owner of a small quantity of personal property. Henry F. Willford was appointed administrator and assumed to discharge the duties of the office. At the March term, 1864, of the County Court, the administrator filed his petition, alleging that he had exhausted the personal estate in the payment of debts; that there were debts still unpaid, and praying for leave to sell the real estate. The bill alleged that the order of sale upon this petition, and all proceedings thereunder were void because there was no jurisdiction of the person of appellee, because the County Court had no jurisdiction of the subject matter, and because the premises were the homestead of the widow and appellee. Defendants answered separately. Wm. B. McCormack averred that he had bought the property in good faith, and without notice of irregularities, at a fair price, and that he had sold a portion of it to his co-defendants. D. J. McCormack and Pretchett also answered alleging that they had purchased without notice of irregularities, and in good faith, and that they had made lasting and valuable improvements. The cause was heard at the January term, 1878, of the Williamson Circuit Court and a decree passed declaring void the order of sale and all proceedings thereunder, also setting aside the deeds to Wm. B. McCormack, D. J. McCormack and Pretchett, and requiring them to surrender the land to the complainant, and that they pay the cost.

The bill contains many charges of fraud and mal-administration, and there is evidence tending to establish these charges, or at least calling for explanation on the part of the administrator, but there is nothing in the record showing that McCormack or his vendees, had any knowledge of these matters, and so far as is disclosed by the testimony, they acted in good faith. If then the court had jurisdiction of the person and of the subject matter, it is not material how erroneously it decided upon the facts; the order cannot for that reason be questioned in a collateral proceeding. Iverson v. Loberg, 26 Ill. 179; Stow v. Kimball, 28 Ill. 93; Mulford v. Stalzenback, 46 Ill. 303; Moffitt v. Moffitt, 69 Ill. 641. Many other authorities might be referred to but this doctrine is so familiar that further citation is unnecessary. The objection that there was no jurisdiction of the person, rests upon the fact that the appellee was in the petition and order named Mary Ann McIntruff. In the summons, her true name, Mary Ann Herrin, was given, and she was served by that name. A guardian ad litem was appointed for her. If she was not correctly named in the petition, objection should have been interposed in the proper way at that time. There is no doubt that she was served, and by the proper name, and the court thereby acquired jurisdiction of the person.

The error or irregularity, that she was described by a different name, cannot be availed of in a subsequent proceeding, and the fact that she was an infant makes no difference. This subject was fully discussed in the case of Pond v. Ennis, 69 Ill. 341, and the rule as here announced was declared and settled. The objection to the jurisdiction of the subject matter is based upon the alleged insufficiency of the petition. It is necessary that the petition should comply substantially with the statute, but it is not necessary that it should be absolutely beyond criticism. In the case of Moffitt v. Moffitt, 69 Ill. 641, it was said, “it suffices to give jurisdiction where the allegation is made, no matter how informally, that there are debts against the estate, that the personal property is insufficient to pay them, and that decedent left real estate.” Upon careful examination, we think this petition contains all that was necessary under the statute then in force, in order “to set the court in motion, and require it to act in the premises, and that was sufficient to give the court jurisdiction,” as was said in the opinion in the case of Iverson v. Loberg, 26 Ill. 179. Looking at the face of the petition and Exhibit A thereto attached, nothing appears wanting. It is true there is the averment that the administrator had applied all the assets that came to his...