Nitt v. Turner 1872 Error the Plaintiff Section 51 Section 98 Section

• Decision Date: 01 September 1838
• Citation: 21 L.Ed. 341,16 Wall. 352,83 U.S. 352
• Parties: McNITT v. TURNER. December Term 1872. ERROR to the Circuit Court for the Southern District of Illinois; the case being thus: 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: 1 "SECTION 51. In all cases where the intestate shall have been a non-resident 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 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." 2 SECTION
• Court: U.S. Supreme Court

83 U.S. 352

21 L.Ed. 341

16 Wall. 352

McNITT v. TURNER.

December Term 1872.

ERROR to the Circuit Court for the Southern District of Illinois; the case being thus:

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:¹

"SECTION 51. In all cases where the intestate shall have been a non-resident 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

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."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 24th, 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 21st, 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

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.^*

"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.

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 14th—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 12th, 1820, which deed, however, had not been recorded until January 2d, 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,³ 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."- 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.

Messrs. J. Grimshaw and O. H. Browning, for the plaintiff in error:

The proceeding in the court of Adams County was wholly ex parte. It does not show who Spotts's heirs were, or where they lived, or what their ages were. Though not stating that he left none, it wholly ignores the existence of any. No report of the sale was made until twelve years after it was made, if it was ever made. Where the sale was made is not stated. All this by way of preface to the argument.

1. The whole proceeding of converting realty into assets is a statutory and extraordinary one, and very dangerous to the rights of minors always. The 98th section of the statute relied on allows the sale by an administrator for debts only where the intestate has died seized. Seizin is a condition precedent: and of course it must be averred in the petition that the party did die seized. Now——

1st. "Leaving" an estate is not equivalent to being "seized" of it. There are many rights in land inferior to "seizin." Indeed, a party may be disseized and yet own an estate, which he may recover by writ. Such an estate he would "leave" though not seized of it; nay, though disseized of it. There is the greatest reason then for following the words of the statute.

2d. But if "dying seized of land" were synonymous with "leaving" it, how then?

As a matter of fact, Spotts did not die leaving this land. He had conveyed to Lucas years before he died. The fact of his conveyance is not denied. It is no answer to say that purchasers at judicial sale are "purchasers" within the meaning of the 23d section of the act relating to the recording of deeds. Purchasers at properly conducted judicial sales are; but not purchasers at judicial sales that are void. Purchasers under the 98th section, authorizing administrators to make sale, are purchasers within the recording acts only when the conditions which the statute prescribes for such sale have existed. Seizin (or, if you please, for the sake...