Verdun v. Barr

Mr. Justice Hand delivered the opinion of the court: The appellants contend that they were not divested of the title to the lands devised to them in fee by their granduncle, James Henry, by the sales made to George W. Newcomb and Ben A. Harding by Alexander Cupples, as executor, by virtue of the order of the county court of Livingston county, for the following reasons: First, the return of the sheriff on the summons issued in the matter of the application for an order to sell real estate to pay debts was insufficient to give the county court of Livingston county jurisdiction of their persons, and that, they be.ing minors at the time the order of sale was entered, the county court was without jurisdiction to enter the order of sale; second, that the report of sale of said real estate was not filed in the office of the clerk of said county court on or before the first day of the next term of court after the sales were made, and that the sale of said lands made by said executor by virtue of the order of the county court, and the execution of the deeds to the purchasers at such sale, did not have the effect to divest them of their title to said lands; and third, that by virtue of the provisions of the will of James Henry, deceased, their father, Alexander Cupples, was given a life estate in said real estate and they were given the fee; that the sales by said executor to New-comb and to Harding were not made in good faith, but were made to himself through Newcomb and Harding, and for the sole purpose of fraudulently depriving the appellants and their brothers and sisters of the fee title in said premises and investing Alexander Cupples with the same. The return on the summons was in the following form: “I have duly served the within by reading the same to the within named, A. H. Cupples, J. Cupples, A. Cupples, 1?. H. Cupples, A. Cupples, J. Cupples, S. Cupples, W. Cupples, June 2nd, ’81, as I am herein commanded. j. A> Hunter, Sheriff.” In Simms v. Klein, Breese, 371, the sheriff’s return showed that summons had been served upon I. R. Simms instead of Ignatius R. Simms, and it was held a good return ; and in Bancroft v. Speer, 24 Ill. 228, the return was in the following form: “Served the within by reading the same to and in the hearing of S. B. Bancroft, June 21, 1858,” and it was held an insufficient return, as it did not show the summons was served on the defendant. It was, however, said: “Had he returned that he had served it on the within named defendant, or employed any language from which we could have seen that such was the fact, the return would have been sufficient.” Here, while the full names of the persons served were not given, the return showed it was served upon the persons named in the summons where their full names were given. It is therefore apparent from the return the persons served were the persons named in the summons, and that was sufficient. The return, under the authorities heretofore cited, was ample to confer jurisdiction over the persons of the appellants in the proceedings in the county court to sell said real estate. The statute (Hurd’s Stat. 1909, chap. 3, par. 108,) contemplates that an executor or administrator, where real estate is sold under order of court to pay debts, shall file a report of the sale on or before the first day of the term next succeeding the sale, and this provision of the statute cannot, as we think, be held, as is contended by the appellees, to be merely directory. The object of the provision was to fix a time at which the heir, devisee or creditor, or other person interested, migjit, without notice, appear and object to the confirmation of a sale of real estate to pay debts. We do not understand, however, that the time when the statute provides the report of sale shall be filed in the clerk’s office is so far jurisdictional that the sale would be held to have been abandoned and the county court to have lost jurisdiction of the subject matter of the sale if the report was not filed in the clerk’s office on or before the first day of the term of court succeeding the date of sale. Clearly, an executor or administrator could not avoid a sale by a failure or refusal to file a report of the sale in time. We are of the opinion that as the object of the statute is to avoid the approval of a report of the sale of real estate to pay debts without giving the parties in interest an opportunity to be heard, the report may be filed subsequent to the first day of the term of court succeeding the date of sale and approved by the court upon notice to the parties in interest of the filing of the report of sale, as such notice would serve every purpose that the filing of the report would serve if filed prior to or upon the first day of the term succeeding the .sale. It appears that the sale was had on the 30th of July, that the first day of the succeeding term was August 15, that the report was not filed until August 24, and that it was approved on the first day of September. There was ample time to give notice between the date of sale and the first day of September that the report would be filed, and that the court would be asked, on the date fixed in the notice, to approve said sale. While no notice appears in the record, we think after a lapse of a period of twenty-five years, and when the approval of said sale is attacked in a collateral proceeding, the presumption must obtain that due and proper notice was given of the filing of the report of sale before the approval of the sale by the court on September i. It is said the deeds to Newcomb and Harding were executed and delivered before the sales were approved. This appears to be true. That, however, was a mere irregularity, which we think was cured by the subsequent approval of the sales. As we view the matter, the approval of the sales, and not the filing of the report of sale, is the important matter, and that mere irregularities in the sale or in the time when the deeds were actually delivered cannot be raised, after the lapse of many years, against innocent parties who have been in possession of the lands sold, for the purpose of defeating their titles. In Bradley v. Drone, 187 Ill. 175, it was held a bill for partition and to set aside an administrator's sale was a collateral attack upon the proceedings of the county court under which the sale was made, and that in a collateral attack upon the proceedings of the county court'nothing is presumed to be out of its jurisdiction except that which especially appears to be so, and in that case, in order to sustain the sale, the presumption obtained that a second summons had been issued where the first summons was not sufficient to confer jurisdiction. We are of the opinion in this proceeding the presumption obtains that the parties had notice of the filing and approving of the report of the sales made to Newcomb and Harding, and that the approval of said sales by the county court cannot be set aside, as against innocent third parties, at this late day in a collateral proceeding, and. that the approval of the sales by the county court validated the deeds to the real estate before that date delivered to the purchasers. The evidence in this record shows, we think, the sale to Newcomb was made in good faith. _ We are, however, impressed with the view that the sale to Harding was made for the benefit, at least in part, of the executor, Alexander Cupples. The accounts of the executor were apparently manipulated in order to create a deficiency of personal estate upon which to base an application for the sale of real estate, and the purchaser of the 600 acres was the son of the attorney for the executor and was a young man without means, and he afterwards conveyed to Cupples, or such persons as Cupples directed, substantially all the land which he purchased. If, however, it be conceded that the sale was wrongfully made to Harding for the benefit of Cupples it was not a void but only a voidable sale, and one which could be set aside by the heir; devisee or creditor, if action were taken within a reasonable time. The sale was made in 1881 and this bill was filed in 1907, a period of more than twenty-five years having intervened between the date of the sale and the date of the filing of the bill. During that time the real estate has passed into the hands of innocent third parties and has greatly increased in value, and it would now and at. this late date be unjust and inequitable to set aside the sale to Harding for mere irregularities in the sale, or for other reasons which the appellants could have taken advantage of upon their arriving at their majority or within a reasonable time thereafter. At the time the bill for partition was filed Agnes H. Barr was forty years of age, Alexander Cupples was thirty-five years of age, James Cupples was thirty-three years of age and William Cupples thirty years of age, and more than twenty-five years had elapsed subsequent to the date of the sale. No excuse is made for this great delay other than that appellants were not advised of their rights in said lands. They had all been served with summons in the application for the order of sale and the public records of Livingston county showed the entire transaction. We are therefore constrained to hold, in view of all of the facts shown by this record, that the title of the present claimants to said lands ought not now be disturbed by reason of the irregularities which occurred in connection with the sale, or the fraud of Alexander Cupples and Harding in buying in the land at the sale for the benefit of the executor. It has been repeatedly held by this court that the fact that the purchaser at an executor’s or administrator’s sale purchased for the executor or administrator does not render the sale absolutely void but only voidable, and if proceedings are not instituted in apt time to set the sale aside by those having the right to contest the same, a ratification of the sale by them will be presumed, (Sloan v. Graham, 85 Ill. 26; Mason v. Odum, 210 id. 471; Brinkerhoff v. Brinkerhoff, 226 id. 550;) and that relief will be denied under such circumstances even though no statute of limitations has run. Mason v. Odum, supra. It is urged by the appellants that the life tenant, Alexander Cupples, did not depart this life until subsequent to the commencement of this litigation, and that during the time which has intervened between the date of the sale of the said real estate and his death, which occurred on June 4, 1909, they could not maintain an action to recover the possession of said land. Under the authority of Weigel v. Green, 218 Ill. 227, and kindred cases, an action by the remainder-man cannot be maintained to obtain possession of real estate during the existence of the life estate. We do not think, however, that the fact that the appellants could not maintain an action to obtain possession of this land prevented them from instituting legal proceedings, upon their attaining their majority, to set aside the sale to Harding. They could, at any time within three years after they attained their majority, being the o'wners in fee of said real estate, have filed a bill in equity to have the sale set aside. This they have neglected to do, and now, although there is no statute of limitations which can be applied against them,, clearly by reason of their laches they are barred of relief. The case of Mason v. Odum, supra, is very much like the case at bar, and in principle, we think, controls this case. We have examined this record with care and are of the opinion the decree of the circuit court should be affirmed, which will accordingly be done. Decree affirmed.