Opinion of the Court.

It is urged that this subsequent order extending the time of making sale by the administrators to the next term of court, should have effect as a construction placed by the court upon the character of the order of sale, viz: that it was limited in its character, and that the court, on April 2, 1850, in granting an extension of time to the administrators to make the sale, limited it by express words to a time certain-the next term. That order, as well as the subsequent orders of continuance for report, were probably but formal orders made upon the call of the docket, and we can attach to them no significance as in any way changing the order of sale of May term, 1848, or as limiting the time of making the sale. Under that order of sale, and unaffected by any subsequent action of the court, we are of opinion the administrators had authority to make the sale at the time they did, July 20, 1852.

The final objection to the sale is, that the power to make it was extinguished by the payment of the debts.

It appears, that in the interval between the order of sale in 1848 and the making of the sale July 20, 1852, the administrators applied to the county court of Ogle county, which had concurrent jurisdiction with the circuit court in such matter after the act of 1849, and on the 7th of August, 1850, obtained in the county court an order for the sale of certain specified land in Ogle and Winnebago counties, and that on December 20, 1850, they sold under that order of sale a lot in Rockford for $1000. It is claimed that the proceeds of that sale more than sufficed to pay all the debts of the estate.

This would appear probably to have been the case as to the debts which had been allowed and entered of record by the county court, as the order of sale of the county court finds the amount of such debts to be $517.68, with interest on them; and at a settlement in the county court, June 22, 1852, it appears that all allowed claims to that date were paid, and a balance of $8.57 left in the administrators' hands.

Yet, that does not appear to have been a final settlement, as on February 5, 1856, the administrators presented in the county court their account for settlement, when a balance was

Opinion of the Court.

found in their hands of $1.61, and it was ordered by the court that that be approved as a final settlement.

But, admitting that, at the time of the sale on July 20, 1852, there were no debts whatever remaining unpaid, we would not, for that reason, hold the sale to be void.

A like question arose in Stow v. Kimball, 28 Ill. 110, where there had been two sales, at different times, under an administrator's order of sale, and it was claimed that enough money had been raised by the first sale to pay all the debts, and that, consequently, the power of the administratrix was exhausted, there remaining no legal object for which the land could be sold. In answer to which this court said: "But conceding the utmost that is claimed, that enough money had been raised by the first sale of lands to pay all the debts, and we still think that the last sale was not void. The court had complete jurisdiction of the matter, and in the exercise of that jurisdiction it decreed that all of the lands mentioned in the petition, specifying and describing them particularly, should be sold to pay the debts of the estate. Surely, if here was jurisdiction in this court to make this decree, it furnished authority to the administratrix to make the sale."

And it was observed that it would be most prejudicial ir effect upon such sales, to hold that a purchaser at such a sale should go and see that in truth there were debts owing by the estate sufficient to require the sale of the particular land, at the peril of getting nothing by his purchase. The purchasers at the sale now in question, must be held to have been bona fide purchasers without notice. Nothing appears to affect them with notice in any way, as to the condition of the estate, whether there were debts remaining unpaid or not, or of any circumstance going to affect the validity of the sale. They were required to look to the order of sale to see whether it gave the authority to make the sale, and to see whether the court granting the order had jurisdiction of the subject matter, and of the persons of those interested in the land, and were not chargeable with notice of anything further.

Syllabus.

Nor do we think, as is contended, that the lapse of time between the order of sale in 1848 and the making of the sale in 1852, and the several orders of the circuit court, (one of an extension of the time of sale to the next term, and the others of continuance for report from term to term,) establish a case that put the purchasers at the sale upon inquiry, so as to charge them with notice of any settlement of the estate or payment of the debts.

We are of opinion that the validity of the administrators' sale has not been successfully impeached, and the decree must be reversed and the cause remanded for further proceedings consistent with this opinion.

Decree reversed.

WILLIAM Low et al.

V.

SALOME C. GRAFF et al. Admrs. etc.

1. TRUST-title taken to secure payment of loan. Where a father holds an equitable title to land, the legal title being in another as a security for the payment of money, and the son advances the money due, and by arrangement takes a conveyance from the holder of the legal title, as a mere security for the repayment of the sum so advanced, which is not near the value of the land, the son will hold the legal title merely in trust and as a security, and the equitable title will remain in the father.

2. But if the son purchases the land and advances the money as a payment for it on his own account, he will take the complete title, both legal and equitable, notwithstanding he may verbally agree that his father may have the future use and occupation as long as he lives.

3. EVIDENCE-parol, that a deed is a mere security. Parol evidence is competent to show that a deed, absolute on its face, is taken merely as a security for the repayment of money advanced as a loan, but the evidence must be clear and satisfactory.

4. DECREE-requiring a conveyance to heirs of a party. On bill to enforce a resulting trust on payment of money due the holders of the legal title, a decree requiring such holders to convey "to the present legal heirs" of a party named, “who shall be individually named in said conveyance,”

Statement of the case.

etc., without finding who they are, imposes an unnecessary burden, in ascertaining who are such heirs, upon those required to convey.

5. CONVEYANCE-description of grantees. A deed to "the heirs at law of A B, late of, etc., deceased," will completely vest the legal title of the grantor in the heirs of A B, without naming them, leaving them, however, to establish their identity when questioned.

WRIT OF ERROR to the Circuit Court of Kane county; the Hon. SILVANUS WILCOX, Judge, presiding.

In the original bill in this case, which was filed on the 5th day of September, 1859, in the DeKalb circuit court, by William B. West, Joseph H. Maybourn and Hiram Barrett, complainants, against Lydia Low, William O. Bailey and John E. Bailey, defendants, the substantial allegations of fact were: About the year 1845 William Bailey, Sr., was in possession of a tract of land described in the bill, situated in DeKalb county, and, being desirous to obtain title to the land, he made an agreement with one Green, by which Green was to enter the land in his own name and retain the title until Bailey could repay the money necessary to enter it, together with accruing interest. This agreement was carried out. Green entered the land on the 9th of March, 1846, and retained the title until the 21st of February, 1850, when Bailey got his son, William, Jr., to advance the money necessary to pay Green, and take a deed for the land in his own name, which he was to hold until William, Sr., could repay him. The money was advanced by William, Jr., Green's debt paid, and the land conveyed to William, Jr., pursuant to the agreement. William, Jr., resided in Chicago, and exercised no supervision over the land. William, Sr., remained in possession of the land and improved and cultivated it during his lifetime. William, Jr., died intestate in August, 1850, leaving a widow, the defendant Lydia, and two minor children, the defendants William O. and John E. His estate was not administered upon, and no guardian was appointed for his minor children; but his widow, Lydia, took charge of the property, sold and disposed of it and paid his debts, in the same manner she would had she been invested with proper legal authority for that purpose.

Statement of the case.

About the 20th of February, 1854, William, Sr., paid the widow, Lydia, about $142 and took from her a warranty deed for the land, believing that this invested him with the complete title. About the 19th day of June, 1854, William, Sr., sold and conveyed the land to his son Frederick, one of the defendOctober 14, 1855, William, Sr., died. About October 10, 1856, Frederick executed a deed of trust on the land to William J. Hunt, trustee, to secure the payment of $109. October 20, 1857, Frederick, being indebted to the complainant Hiram Barrett, upon two notes for the sum of $642, also executed to the complainant J. H. Maybourn, as trustee, a deed of trust on the land to secure the payment of the same. Lydia Bailey, widow of William, Jr., subsequent to the making of the deed by her to William Bailey, Sr., intermarried with William Low. May 18, 1858, Frederick W. Bailey conveyed his interest in the land, subject to the two trust deeds, to George Bailey. December 18, 1858, William J. Hunt, trustee under the first described trust deed, sold the land, as trustee, to the complainant William B. West, who paid said Hunt the amount secured by said deed of trust, and Hunt executed and delivered to him a deed for the land. At the time Frederick W. Bailey became indebted to Barrett, he represented himself to be the owner of the land, that his title thereto was valid, and exhibited what purported to be an abstract of title, showing that he had title to the land, and Barrett relied upon these representations as true, and took from him the trust deed in good faith, and only recently, before the filing of the bill, discovered the defect in the title.

Complainants offer, in their bill, to pay to whomsoever the court shall direct, whatever shall be found due the minor heirs of William Bailey, Jr.

The prayer is, that the defendants may be forever barred from having or claiming any interest in, or title to, the land, or that they may be decreed to pay to the complainants their just indebtedness due upon the trust deeds, etc., that a guardian ad litem be appointed for the minor defendants, etc. Answer of guardian ad litem was filed for minor defendants,