Opinion of the Court. Whether he did or not, affords no grounds for relief in their favor. There is yet another consideration that bears strongly on the decision of the case. Should it be conceded the irregularities insisted upon actually existed, still the sale would not be absolutely void, but only voidable at the election of the parties interested in the estate. Acquiescence in the sale, unexplained, for any considerable time, will be deemed a waiver of all mere irregularities that may have intervened. Whatever may have been the status of Bush or Richard, or his heirs, in consequence of the civil war, they can assert no rights in this court that Hall could not maintain, had he been the sole complainant. Succeeding to his rights under the mortgage, whatever would bar relief as to Hall, would cut off relief as to them. More than four years elapsed after the sales alleged to be irregular were made, before any steps were taken to set them aside. If Hall did not know of the existence of the facts which he now insists vitiate the sales, it was because of his own voluntary conduct. The exigencies of the war of the rebellion can afford no excuse for the delay in asserting whatever rights he may have had in the premises. Voluntarily he placed himself beyond the protection of the laws and government under which he had acquired his claim to the property he now seeks to have appropriated to him by a court of equity. The State to which he removed had already, by ordinance, manifested a purpose to withdraw from the Federal Union. He deliberately elected to cast his lot with the people of the South, and abandoned his property in the North to the chances of war. Whatever may have been his declared intention, it was of his own choice he placed himself in a position where he would be subject to be drafted into the armies organized for the destruction of the government, and if he had not volunteered he no doubt would have been compelled to enter the military service. He chose the former alternative, and enlisted in the armies of the South. Had he remained at Thebadeaux, the place selected for a home for himself and family, he would still have been, as we have seen, within the Federal lines, with the excep Opinion of the Court. Direct com tion of a brief period in the summer of 1863. munication was kept open, by rail and by water, between Thebadeaux and New Orleans, and from thence to Chicago, where his property was situated. Had he remained in the vicinity of this property, it would doubtless be conceded he allowed an unreasonable time to elapse before bringing his bill, and surely it can not be asked for him, in a court of conscience, the application of a more liberal rule because he was absent through many years, engaged in a war for the destruction of the government. On what principle of justice can he invoke the application of a less stringent rule than would be applied to a citizen who had contributed by his presence and his means to the maintenance of those laws under which all property is secured? Without justifiable cause, he abandoned his property to what he called the "chances." No provision was made for removing the incumbrance he knew was liable to be foreclosed in a summary manner, that would cut off whatever claim he had to the property. He paid neither interest nor principal, and manifested no disposition to do so; nor did he make any provisions for the payment of taxes which was necessary to preserve the property for the parties interested in it. Most clearly he abandoned all his interests in the property to the vicissitudes of war. As was forcibly said by Mr. Justice DAVIS, in McQuiddy v. Ware, 20 Wall. 14, "here, there is a case of a party engaging in the rebelling without provision for his debts, to which there was no defense, asking a court of equity, after the lapse of many years, without sufficient excuse for the delay, to interfere in his behalf, because his creditors adopted the wrong methods for the enforcement of their claims against him." Adopting the language of this court in Hall v. Connecticut Mutual Life Insurance Company, supra, as most appropriate, it is an anomalous excuse for a party to offer in a court of equity for not asserting, at an earlier period, whatever rights he may have had in the premises, "that he was voluntarily Opinion of the Court. away, engaged in a warfare for the destruction of the gov ernment." In Hamilton v. Lubukee, 51 Ill. 415, it was said, "even if the mortgagee himself had been the purchaser through the aid of a third person to whom he could have conveyed, and then taken the title from him, such title would not be absolutely void, but voidable only, and if immediate steps should not be taken by the cestui que trust, the mortgagor, on his obtaining a knowledge of the sale, to set it aside, a ratification by him will be implied. Such a sale can be set aside only at the option of the cestui que trust, and that must be determined in apt time." The case of Munn v. Burges, supra, has some elements in common with the one we are considering. It was said, “at most, the irregularity complained of in the sale only rendered the title voidable, and an application to set it aside for that cause should have been made within a reasonable time, and before the rights of innocent third parties had intervened." Numerous cases in this court declare the doctrine of laches as applicable to the case at bar. Dempster v. West, 69 Ill. 613; Cox v. Montgomery, 36 Ill. 398; Winchell v. Edwards, 57 Ill. 46; Seymour v. Bailey, supra. The principle that lies at the foundation of all the cases in this court upon this subject is, the party who challenges a sale on account of irregularities that may have intervened, must be diligent in discovering that which he alleges will avoid the sale, and diligent in his application for relief. Unreasonable delay, not explained by equitable circumstances, has always been declared evidence of acquiescence in the sale, and a waiver of all mere irregularities. A party will not be permitted to delay, to enable him to speculate on the chances of an appreciation in values of the property, and elect to avoid the sale only where it will be profitable to do so. He must make his election at the earliest practicable moment. In the case at bar, complainants are only seeking to enforce equitable rights. Default had been made in the conditions of the mortgage, and all that remained to them, under the most Opinion of the Court. favorable construction, was the equity of redemption in the property. Relief, in no view, could be had, except in a court of chancery, and upon terms that should be just to all parties. At the sales under the power contained in the mortgage, the property sold for its full cash value. Since then, it has increased many times in value, so that now it would be desirable to redeem the property. No great speculation could have been anticipated shortly after the sales. All the facts complainants now know, upon which they base the theory the sales are invalid, would have been in the reach of Hall, had he not voluntarily gone beyond the Federal lines while the war was in progress, where it was impracticable to return. Such facts were matters existing on the public records, and were readily accessible to any one seeking to know them. Actual hostilities ceased between the North and the South in the spring of 1865. Shortly thereafter communication was fully established between all sections of the country. The mails were established and travel was entirely safe. It was practicable for complainants, had they instituted inquiry, to have obtained all the information they now possess, in the year 1865, yet this bill was not filed until December, 1867. Perhaps one reason is, the property had not then appreciated in value to so great an extent. Complainants have shown no equities superior to those of defendants. Now, since law has been established that gives value and permanent security to property, they seek to recover that which had been deliberately abandoned. Previously, no effort had been made to discharge the incumbrance resting upon the property. This, it seems to us, would be inequitable, and especially after the lapse of so great a period, even if it should be conceded complainants may have had equitable rights in the premises, had they asserted them in apt time. After a most careful examination, we discover no grounds for relief, in any view of the case that can fairly be taken. The decree will therefore be reversed and the bill dismissed. Decree reversed. Opinion of the Court. 80 177 ANDREW PINGREE et al. V. SARAH D. P. JONES. 1. LIFE INSURANCE — procured by wife's persuasion. A wife has the right, by the use of all the persuasive arts at her command, to induce her husband to procure a policy of insurance on his life for her use, and, on his death, to receive all its benefits and proceeds. 2. WILL-executor not personally liable for costs on contest. In contest relating to the validity of a will, it is the duty of the person by it appointed executor, to defend it, and when he does so, although unsuccessful, it is error to render a decree against him personally for all the costs. APPEAL from the Circuit Court of Boone county; the Hon. THEODORE D. MURPHY, Judge, presiding. Mr. CHARLES WHEATON, for the appellants. Mr. R. L. DIVINE, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court: This was a proceeding on the equity side of the Kane circuit court, instituted by Sarah D. P. Jones, complainant, against Andrew Pingree and Betsy P. N. Perkins, defendants, to set aside the will of Otho W. Perkins, complainant claiming as his only heir at law, and charging that the property came by her brother to testator, and the defendant Andrew claiming to be executor, and Betsy the devisee under said will. The principal allegations in the bill are: 1. That the testator was insane, and incapable of making a will at the time the will in question was executed. 2. That undue influence was exercised over the testator, by the defendants, to procure the will to be made. The prayer of the bill was, that an issue at law might be made up to try these questions, and that the will be set aside, if the issue be found for complainant. This bill of complaint was answered by defendants, denying the charges, and a replication filed by complainant, and on her 12-80TH ILL. |