Wilson v. Lowmaster

• Decision Date: 13 October 1899
• Citation: Wilson v. Lowmaster, 181 Ill. 170, 54 N.E. 922 (Ill. 1899)
• Parties: WILSON v. LOWMASTER.
• Court: Illinois Supreme Court

181 Ill. 170

54 N.E. 922

WILSON

v.LOWMASTER.

Supreme Court of Illinois.

Oct. 13, 1899.

Appeal from circuit court, Coles county; Frank K. Dunn, Judge.

Ejectment by John J. Wilson against Alfred Lowmaster.From a judgment in favor of defendant, plaintiff appeals.Affirmed.

Neal & Wiley, for appellant.

James W. & E. C. Craig and Henley & Henley, for appellee.

CARTER, J.

This was an action of ejectment brought by the appellant against the appellee to recover a tract of land in Coles county.There was a judgment for the defendant, and the plaintiff appealed.

In the lifetime of Harvey v. Worley, who was the owner of the land, Charity Wilson obtained a judgment against him for $1,500.After his death, Amanda T. Worley was his administratrix, and settled his estate, and was discharged.After her discharge, Charity Wilson gave to her, as such administratrix, in pursuance of section 39 of the act relating to judgments (Hurd's Rev. St. 1897, p. 983), written notice of the existence of the judgment against her intestate, in order that she might have execution issued upon the judgment.After the expiration of the three months, as provided by the statute, execution was issued upon the judgment, and the land in question was levied upon the sold to the plaintiff.Afterwards, learning that the estate had been settled, and that the administratrix had been discharged before the notice was given, Charity Wilson, by her motion, caused the sale to be set aside by the court, and thereupon undertook to give notice of her said judgment to the heirs at law of the said Harvey B. Worley, as provided in said section 39, in cases where there is no executor or administrator of the estate.Said section provides for the sale of the real estate of the judgment debtor without reviving the judgment, upon execution to be issued after the expiration of 12 months after his death, but that no sale shall be made on such execution ‘until the person in whose favor the judgment or decree is sought to be enforced shall give to the executor or administrator, or, if there be neither, the heirs of the deceased, at least three months' notice of the existence of such judgment or decree before issuing execution or proceeding to sell, which notice shall be in writing when the parties required to be notified reside or may be found within the state and their place of residence known, otherwise publication notice shall be given in the manner directed for chancery proceedings in sections 12and13 of an set entitled ‘An act to regulate the practice in courts of chancery,’ approved March 15, 1872.'The affidavit of the plaintiff was filed with the clerk of the...