Wimberly v. Hurst

Mr. Justice Breese delivered the opinion of the Court: Several objections are made to the recovery in this case, the most important of which we will notice. The action was ejectment brought by the defendant in error against the plaintiff in error to recover the. possession of a certain quarter section of land in Marion county. The plaintiff in the action, to show title on his part, introduced the certificate of the register of the land office at Springfield, after proving his handwriting, of the entry and purchase of the land by William Kinney and John Taylor; also the record of the proceedings of the Circuit Court of Sangamon county on the application of the administrator of Taylor to sell the lands, of which he was supposed to have died seized, to pay his debts. He also introduced a deed from the administrator reciting this decree to him, for the premises, and also a deed from William C. Kinney and wife to him- for the same lands, and the will of William Kinney by' which, aftér giving - certain ■ legacies, he devised the residue of his personal and real estate to his son, William C.-Kinney, whom-he appointed executor. The plaintiff then proved the defendant was in possession of the premises at the time of the commencement of the suit. The defendant showed no other title to the premises than this possession. It is objected here, that the proceedings of the Circuit Court, on the petition of the administrator, were irregular, and so defective as to convey no title to the purchaser. It may be admitted the proceedings were not strictlyregular, yet at the same time, the court having jurisdiction both of the persons of the parties and of the subject matter, the decree rendered is valid and binding, and cannot be attacked, collaterally, in this action. The decree recites that due notice of the application had been given to all persons interested, of the intention of the administrator to file the petition, by publication in the Illinois State Register, in the manner and for the period required by law. The decree also finds that John Taylor died seized of the lands described in the petition; it finds and names his heirs-at-law, and that they were of full age; it also finds that the administrator had applied the proceeds of the personal estate to the payment of the .debts of the deceased, and that there was still due and unpaid of debts the sum of more than seven thousand dollars. ■ The decree directed the administrator to sell the lands described in the petition to pay these debts, and required ‘him to report his proceedings to the court for confirmation. No substantial objections are perceived to any of the proceedings in the Circuit" Court, nor to the regularity of the sale by the: administrator. They all appear to be in reasonable conformity to the statute. The objection that the land was sold, not in the lowest legal subdivisions, is an objection, if it was one, which ho mere intruders or trespassers could be permitted to make, however available it might be for the heirs-at-law of Taylor to make it before the sale is confirmed, on a motion to set aside the sale. They were sold in the. same legal subdivisions as they were described, and in separate tracts, and not en masse, as the record shows. It is objected, that the quitclaim deed of William 0. Kinney had nothing to operate on, no deed from William Kinney to John Taylor being produced. The decree finds the lands to belong to John Taylor, and, so far as this defendant is concerned, is conclusive upon him, unless he could set up a deed from William Kinney to himself, which is not pretended. Since the decree, and the sale under it, and the purchase by the plaintiff in the ejectment, the deed from William Kinney to Taylor not being found, and it never having been recorded, the devisee of William Kinney quitclaims to the plaintiff all his interest in the premises. So the case stands thus: The decree finds the title to be in Taylor, and although that may not be conclusive, the plaintiff succeeded to all Taylor’s rights and interest in the premises, by his purchase under the decree. But to make assurance doubly sure, the devisee of William Kinney conveys all his interest in the premises to the plaintiff, so that a complete legal title is established in the plaintiff. But the defendant says there is no apparent connection between the quitclaim deed of William 0. Kinney and the will of William Kinney, no reference being made in the deed to his right as residuary legatee under the will. This is true; there is no such reference. But what is the rule in such cases ? Where a conveyance is general, but by an instrument not adapted for the purpose of conveying a particular interest or as an execution of a power, it will be held to convey whatever interest the grantor had, or as an execution of a power vested in him if it would, otherwise, be totally inoperative, although his interest or character is not referred to expressly or by implication. 1 Sug. on Powers, 418. In the present case the deed of Wm. C. Kinney would be wholly inoperative, if it is not construed to convey such title as was, apparently, vested in him as the residuary legatee under the will of his father. The grantor had no other interest whatever. The clause in his deed, explanatory of its object and meaning, assumes the fact to be' that his father had, at some time, conveyed the lands described to Taylor, but from the loss of the deed, or from some other reason, there was still an apparent title in William 0. Kinney, and the object and design of the deed was to vest that apparent title in Hurst, who held the title of Taylor. Upon the other point made, that the court rejected the supplemental will of William Kinney, it is only necessary to say that though the will was competent evidence under the statute, it does not follow that it was pertinent to the issue in this case. The supplemental will may have contained a pecuniary legacy to some party and nothing more, hence the necessity of preserving such clauses of it, as are deemed pertinent in this case, on the record. We cannot know that its production was material in any sense. Perceiving no error in the record, the judgment must be affirmed.