Borders v. Hodges

Phillips, J.: The evidence in this record does not show the quantity of land in the two surveys of the two claims. “Part of claim No. 2087, survey No. 440, in township 6, south of range 8, west, and part of claim No. 559, survey No. 696, in township 6, south of range 7, west, saving and exceping 73-nnr acres off of claim No. 2087, survey No. 440, sold by Catherine Fisher by virtue of an order of the probate court made at the January term, 1869, sold to pay debts,” as a description in the petition, notice to non-residents, decree, report of sale and deed, must be held void for uncertainty. If it could be assumed that by extrinsic proof the land could be ascertained and found by a surveyor, yet no such evidence appears in this record. But even if that fact was shown, neither by the petition, decree, deed nor report of sale is the number of acres sold stated, nor the price per acre for which the land was sold. It not appearing that the whole of the land belonging to said estate was sold, extrinsic proof could not be resorted to, as there is nothing to show whether one acre or eighty acres were sold. The description is so vague and uncertain that no title was conveyed by the deed. Carter v. Barnes et al. 26 Ill. 454; Lancey v. Brock, 110 id. 609; Brickey v. English et al. 129 id. 646. The lands described in the bill as owned by the said Joseph G-. Fisher at the time of his death are a part of the lands in which a life estate was devised to Catherine Fisher, and she being alive at the time of filing the bill, the complainants are not barred by the Statute of Limitations, as the statute does not begin to run against reversioners or remainder-men until after the expiration of the intermediate estate, by the express provisions of section 3, chapter 83, of the Revised Statutes, and for the same reason loches cannot be imputed. The deed being void for uncertainty, complainants have not been divested of their interest which they acquired under the will of their father, and have a right to seek partition of the lands. When they have applied for partition by filing their bill for that purpose, and defendants seek to set up title in themselves by reason of a judicial sale, they must show valid proceedings which legally divest complainants of their title. The claim of title by complainants, and filing a bill for partition by them, are not a collateral attack on this decree of the probate court. , Four several deeds were made, including that of the administrator de bonis non, to and including that by which the devisor of defendants acquired title; and it is urged, that as the purchase money for the land was used in paying the debts of the estate and costs of administration, and the residue paid to the county treasurer for complainants, the devisees (defendants herein) should be subrogated to the claims of creditors which have been paid by the purchase money, where no title passes by the administrator’s deed. There is no evidence in this record that the complainants ever accepted or received the money paid to the county treasurer. Had they done so, with full knowledge of their rights and the consequences of their act, they would have been estopped from asserting title inconsistent with it. (Davidson v. Young et al. 38 Ill. 145; Schnell v. Chicago, 38 id. 382; Dorlarque et al. v. Cress et al. 71 id. 380.) It is a general rule, subject to few exceptions, that in all judicial sales the doctrine of caveat emptor applies. (McConnel et al. v. Smith, 39 Ill. 279; Bishop et al. v. O'Conner et al. 69 id. 431.) Subrogation is a doctrine of equity jurisprudence, and is generally confined to the relation of principal and surety and guarantor, or to cases of a person compelled to remove a superior title to that held by him, in order to protect his own, and also to cases of insurers. Within these cases the doctrine of subrogation is confined and limited. One who purchases real estate at a judicial sale made by an administrator, and who pays money for land sold, which is applied on simple debts of the ancestor, cannot be subrogated to the rights of creditors whose debts are so paid. Such case does not come within any of the cases to which the doctrine of subrogation is limited and confined. (Bishop et al. v. O'Conner, supra.) Where an heir files a bill to redeem lands sold, and there is no fraud on the part of the pur- . chaser, equity will require a complainant in such case to refund the money paid by the purchaser. (Kinney et al. v. Knoebel et al. 51 Ill. 112; Smith et al. v. Knoebel et al. 82 id. 392.) In such case, one coming into court and asking equity must do equity. But the principle which requires this to be done is not one of subrogation. The complainants cannot, in this proceeding, be required to refund the money paid by the purchaser at the administrator’s sale. The errors in the petition, decree, deed and report could not be corrected in the manner prayed for in the cross-bill, as such correction of. errors in a decree must be done by motion, appeal, writ of error or bill of review. Cox et al. v. Garst, 105 Ill. 342. It was not error to sustain the demurrer to the cross-bill and grant the prayer of the original bill. The decree is affirmed. Decree affirmed.