Noe v. Moutray

• Decision Date: 08 November 1897
• Citation: 170 Ill. 169,48 N.E. 709
• Parties: NOE v. MOUTRAY et al.
• Court: Illinois Supreme Court

170 Ill. 169

48 N.E. 709

NOE

v.MOUTRAY et al.

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from Richland county court.

Appeal by M. J. Noe, administrator. Order affirmed.John Lynch, Jr., and James C. Howard, for appellant.

Allen & Fritchey and J. I. Moutray, for appellees.

MAGRUDER, J.

This is a petition filed in the county court by the appellant, M. J. Noe, administrator of the estate of Joseph Johnson, deceased, for the sale of land to pay debts. The petition shows the insufficiency of personal assets. It makes defendants thereto the heirs of the intestate, and certain of his grantees, and also certain grantees of his heirs. It also makes, as parties defendant, certain persons holding mortgages executed upon the premises by the grantees of the heirs. Answers were filed to the petition by these mortgagees and grantees. Exceptions were filed to the answers. These exceptions were overruled. The petitioner abided by his exceptions, and the court dismissed the petition at the costs of the administrator. To this exception was taken, and an appeal has been brought to this court. Without considering the question whether the pleadings are in proper shape or not, and without going into an elaborate statement of their contents, or of all the facts in the case, we deem it sufficient to state enough of the facts to present the question argued by counsel and submitted in their briefs.

The property, which the administrator asked to have sold for the payment of the claims allowed against the estate, consisted of 80 acres of land in Richland county. The answers deny that the deceased intestate owned this tract of 80 acres at the time of his death, and deny the right of the petitioner to a sale of the same for the payment of debts against the estate. Joseph Johnson, the intestate, died on October 9, 1894, leaving him surviving his widow, Sarah L. Johnson, who has sold her interest to the grantees hereinafter named, and, as his only heirs at law, two sons, Isaac Johnson and Samuel Johnson, and one daughter, Emily S. Clark, and certain grandchildren, who are minors, the children of a deceased son of the intestate named William Johnson. William Johnson left a widow named Nancy Johnson. Appellant was appointed administrator of the estate on November 19, 1894. On November 9, 1885, nearly nine years before his death, the intestate, Joseph Johnson, executed a deed of the premises in question to his sons, Isaac Johnson and Samuel Johnson, and his daughter, Emily S. Clark, and his daughter-in-law, Nancy Johnson. This deed was never put on record until April 9, 1895, nearly five months after letters of administration were taken out. After it was put on record the grantees therein conveyed their interest in the premises to one J. I. Moutray, who executed a mortgage thereon to the executors of the will of one John H. Clark, deceased. J. I. Moutray conveyed the premises to M. O. Moutray, a single person, who conveyed them to Perce L. Moutray, the wife of J. I. Moutray. Perce L. Moutray, the wife of husband executed a mortgage upon said premises for the sum of $1,500 to one R. N. Stotler on September 16, 1895. On November 26, 1894, a claim was allowed against said estate in the county court of Richland county. On January 7, 1895, other claims were allowed against said estate. On March 6, 1895, still other claims were allowed. For all of these claims judgments were rendered. It will be observed that these claims were allowed, or judgments rendered, before April 9, 1895, when the deed was recorded. It is claimed on the part of appellees, the Moutrays and their mortgagees, that the intestate conveyed away this property in his lifetime to their grantors, the two sons and the daughter and the daughter-in-law of the intestate; that the land belongs to them, as holding under the grantees of the intestate; and that, at the time of his death, the intestate had no interest therein. On the other hand, it is claimed by the appellant, the administrator, that, inasmuch as the claims in question were allowed against the estate before the deed made by the intestate was recorded, and while the record showed that the intestate held the title at the time of his death, and that the title was in his heirs thereafter up to the time of the recording of the deed, therefore the rights of the creditors whose claims were allowed should have precedence over those of the grantees in the deed and those holding under them. Undoubtedly an administrator has no right to sell, for the payment of debts of the intestate, any land which did not belong to the intestate at the time of his death. The question here presented, however, is whether the holders of judgments against an estate, or against the administrator of an estate, can be regarded as such creditors, under the conveyance act, as that they can subject the land to the payment of their debts, as against the grantees in an unrecorded deed made by the intestate in his lifetime. It is not claimed on the part of the appellant that the unrecorded deed executed by the intestate in his lifetime was fraudulent or made for any improper purpose. As between the parties to it, it was certainly a valid deed. The petition makes no attack upon the deed, and does not seek to question its validity in any other respect than that it was unrecorded when the claims were admitted to probate.

Are the parties, whose claims against the estate were allowed, ‘creditors' within the meaning of section 30 of the conveyance act? Said section 30 provides that ‘all deeds, mortgages and other instruments of writing which are authorized to be recorded, shall take effect and be in force from and 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.’ 1 Starr & C. Ann. St. (2d Ed.) p. 944. In the case of Martin v. Dryden, 1 Gilman, 187, a construction was given to this statute, so far as to define the meaning of the word ‘creditor’ as therein used. In that case we said that a ‘creditor,’ within the meaning of the recording acts, is ‘one who, without actual or constructive notice of a prior conveyance or incumbrance, institutes such proceedings, or takes such steps, as effect a lien on the land before the recording of such conveyance of incumbrance, whether the debt be prior or subsequent to them, and whether the vendor, at the time of conveying or incumbering, had other property sufficient to pay the debt or not.’ This definition has been followed in many subsequent cases. In Massey v. Westcott, 40 Ill. 160, we said: ‘Under our statutes, a purchaser and a judgment creditor having a lien stand upon the same equity.’ McFadden v. Worthington, 45 Ill. 362; 2 Devl. Deeds (2d Ed.) § 635, and note. As the creditor mentioned in said section 30 must be a judgment creditor having a lien, the further question arises whether a party who had his claim allowed against a deceased man's estate is a judgment creditor having a lien upon the real estate of the deceased. It is well settled that the administrator takes no estate, title, or interest in the realty, save a naked power to sell the same upon the order of the probate court, the exercise of which is conditioned upon an insufficiency of personal assets to pay the debts of the intestate. Under our law the legal title to the personal estate vests in the administrator, but the title to the real estate descends to the heir at law. Phelps v. Funkhouser, 39 Ill. 401;Stone v. Wood, 16 Ill. 177; 2 Woerner, Adm'n, § 463. Hence a judgment rendered against an administrator in his representative capacity has no operation as a lien upon land belonging to the estate. 1 Black, Judgm. § 409. When a claim is allowed against an estate, such judgment of allowance is merely prima facie evidence of the debt due by the estate, so far as the realty is concerned. It is the basis of ‘a proceeding to try whether or not the realty is chargeable with it.’ 2 Black, Judgm. § 560. It is true that, in many of the decisions rendered by this court, the right of the creditors, through the administrator, to subject the land of the deceased by sale to the payment of their claims, is spoken of as a lien. McCoy v. Morrow, 18 Ill. 519;Myer v. McDougal, 47 Ill. 278;Reed v. Colby, 89 Ill. 104. But the word ‘lien,’ as used in these cases, has a qualified meaning, and not the meaning which is given to it in the first section of the chapter...