Opinion of the Court.

6. DECREE OF FORECLOSURE- - when binding, on failure to redeem. A decree of foreclosure of a mortgage, if it is of such force as to be taken advantage of by the defendants as an estoppel against the complainants denying their title, in case they chose to redeem from sale under it, is binding on them in case they fail to redeem.

APPEAL from the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding.

Mr. EDWARD ROBY, for the appellants.

Messrs. AYER & KALES, Messrs. ISHAM & LINCOLN, Mr. EDWARD MARTIN, Messrs. MONTGOMERY & WATERMAN, Mr. LYMAN TRUMBULL, Mr. JOHN BORDEN, and Messrs. BENNETT, KRETZINGER & VEEDER, for the appellees.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was a bill in equity, filed by appellants in the court below, against appellees, and several other parties as to whom it was dismissed on the filing of answers, praying to be allowed to redeem from a certain mortgage and for other relief.

The mortgage is upon lands, now estimated to be very valuable, in Cook county, in the immediate vicinity of the city of Chicago, and was executed by appellants' ancestor, John Bostwick, on the 1st day of May, 1855, to the appellee Mark Skinner, to secure the payment of $19,000, and accruing interest. Answers were filed by appellees, as also cross-bills, praying the removal of a cloud cast upon their titles by appellants and their solicitors. The cause was heard on bill, answers, cross-bills and answers thereto, and evidence, and the court thereupon decreed in favor of appellees, denying the prayer of appellants' bill, and granting the relief prayed by the cross-bills.

Appellees deny that appellants' ancestor, John Bostwick, through whom alone they make claim, ever had, in equity, any interest in the lands, and assert that his purchase, or attempt to purchase, was made as the agent and trustee of the appellee John M. Krum; that Krum furnished all the money that ever was paid by Bostwick for the land, under his contract to purchase; and that if any deed was ever, in fact delivered to Bost

Opinion of the Court.

wick for the land, vesting in him the legal title, such deed was so made and delivered in violation of his agreement with Krum, and that he, consequently, had but the naked legal title, which he and those claiming under him are, in equity, chargeable as holding in trust for Krum. We incline to the opinion that a fair preponderance of the evidence would justify this conclusion. It is quite clear that Bostwick had no money of his own, and no credit; that when he purchased the property in controversy, he had no source from which to obtain the money for its payment, except the promise of Krum to advance the amount; and Krum's version, that he agreed to buy the property for him, as an indemnity for previous losses, and that the money paid on the contract of purchase was advanced by him on the faith of that agreement, is not successfully impeached or overcome by other evidence.

But, aside from this view of the case, we are of the opinion that whatever interest appellants may have had in the lands was disposed of by the sale of the administrator of Bostwick's estate, and the deed made pursuant thereto, and we shall, therefore, restrict our remarks to this branch of the case.

That Bostwick died intestate in Cook county, and that all the property administered was there situated, is conceded; but appellants insist that his actual place of residence was Upper Alton, in Madison county, and that, therefore, the Cook county court had no jurisdiction over his estate, and all orders made by it appointing an administrator and directing a sale of the lands for the payment of debts, etc., were absolutely void.

The record shows, that on 17th day of November, 1855, Benjamin F. Downing presented his petition, in writing, to the Cook county court, wherein he recited "that John Bostwick, late of Cook county, died in Chicago on or about the 12th day of September, 1855, leaving property and effects" in that county, "but leaving no last will or testament, as far as known or believed" by the petitioner; that said property and effects consisted of land in the county, worth about $500; that said deceased left a widow and two or three children, who reside at Alton, Ill.; that the petitioner was a creditor of said estate to

Opinion of the Court.

the amount of $50, for board-and the petitioner, therefore, prayed that the administration of the estate of the said John Bostwick, deceased, might be granted to him. This was subscribed and sworn to by Downing.

The court, on the same day, made the following order:

"This day comes into court Benjamin F. Downing, and makes application for administration of the estate of John Bostwick, deceased.

"And it appearing to the court, by satisfactory proof, that John Bostwick, late of Cook county, died in said county on or about the 12th day of September, A. D. 1855, leaving property and effects in this county, but leaving no last will and testament;

"And it appearing to the court that said Benjamin F. Downing is a creditor of said deceased, and by law entitled to administration of the effects whereof he died possessed, it is

"Ordered, that administration of the estate of said John Bostwick be granted to said Benjamin F. Downing, upon his entering into bond in the penal sum of $1000, payable and conditioned as the law directs.

"And the said Benjamin F. Downing, having produced the bond, with Paul Cornell and Lewis W. Stone as his securities, which is approved by the court, and taken the oath of office as such administrator, it is

"Ordered, that letters of administration issue to him accordingly."

Passing over the intermediate steps in the administration of the estate, all of which are set out in full in the record, we find that, at the March term, 1856, the administrator having previously given proper notice by publication, presented to the Cook county court his petition, in writing, praying for a sale of so much of the real estate of which the intestate was seized and possessed at the time of his death as should be sufficient to pay the debts due from the estate.

The petition contains an allegation that the petitioner "is the legal administrator of the estate of John Bostwick, deceased, late of Cook county."

Opinion of the Court.

A guardian ad litem was appointed, who answered for the defendants, requiring full proof to be made of the allegations in the petition.

The court decreed a sale of the lands in conformity with the prayer of the petition.

The question is, can appellants, in this collateral proceeding, go behind these orders of the Cook county court, and inquire into their correctness?

Upon their face they show that the court had jurisdiction, and unless it is now competent to raise an issue of fact to test their verity, they are conclusive. To hold that this may be done, especially after the lapse of so many years, would, obviously, be fraught with great evil, in view of the commercial character which custom has, in this country, affixed to lands, and the frequent and great fluctuations in value to which they are incident. In many cases, by reason of the deceased having had more than one domicile, occupied alternately, as pleasure or convenience dictated, or by reason of a change in domicile being in process of consummation at the time of death, it may be a question of much perplexity to determine with entire accuracy what was the actual domicile; and if the question, however deliberately passed upon by the county court, is to be considered as always open to proof whenever any one may choose to raise it in a collateral proceeding, it is fair to presume that different results might be reached by different tribunals, or even by the same tribunal, at different times, varying in each case to conform to the preponderance of proof then produced. A fact which may, when the decree for the sale of this property was rendered, have been demonstrably proved, may now be unsusceptible of satisfactory proof, in consequence of the death or absence of witnesses, or even the loss of memory of witnesses. If titles to be derived at administrator's sale should be held subject to this element of insecurity, in addition to such as have heretofore been recognized, few men of prudence could be found to invest in them, unless at prices ruinous to estates. Such a construction, manifestly, could only be justified by the strict letter of the law.

Opinion of the Court.

We do not consider it indispensable to the present case, that we shall determine whether the county court, in granting the letters of administration, acted judicially or only ministerially, since, when the decree was passed for the sale of the lands, it was unquestionably acting judicially, and the question of jurisdiction, both over the person and the thing, was then determined.

The construction given, in argument, in Propst v. Meadows, 13 Ill. 157, to the law creating the county court, in respect to its relative rank, has been too long adhered to to be now questioned. It has been referred to with approval in many subsequent cases, and, so far as we now recall the decisions of this court, never questioned. Upon the faith of its correctness, property rights have been acquired which it would be grossly unjust to disturb, even if we were fully convinced, as the counsel contends, that it originated in a total misapprehension of principle.

Accepting, then, as not to be questioned, as there said, that "the county court, although of limited, is not, strictly speaking, of inferior, and certainly is not a court of special jurisdiction," and that, "when it is adjudicating upon the class of questions over which it has general jurisdiction, as liberal intendments will be granted in its favor as would be extended to the proceedings of the circuit court," it would seem to follow, this record, when considered in this collateral way, is conclusive. There is nothing in the record to disprove jurisdiction. Whether the petitioner was administrator, was one of the questions to be determined by the court, and, the court having decreed in accordance with the prayer of the petition, the presumption is, that the proof was sufficient.

In Botsford v. O'Conner et al. 57 Ill. 77, in determining the sufficiency of the record in respect of the jurisdiction of the court over the defendant, in a proceeding by an administrator, in the county court, to sell lands to pay debts, it was held, the court acquired jurisdiction of the case from the death of the party seized of real estate, the grant of letters testamentary or of administration, and his indebtedness, and filing