Opinion of the Court.

Hynes was not the owner of the lands about which the parties had been negotiating, but one Morse was the real owner. After the dissolution of the co-partnership between defendants, such negotiations were had with George by which plaintiff purchased the lands of Morse. The latter sale was effected April 10, 1872.

There is no pretense the $250 advanced on the first contract has ever been refunded, unless it was done in some way on the Morse contract. But we are unable to find any satisfactory evidence that it was adjusted in that way.

It will not do to say the case presents a conflict of evidence, was properly submitted to the jury on proper instructions, and for that reason the verdict ought to be permitted to stand. Upon looking into the instructions, we find every one of the series given on behalf of defendants, is, in some particular, faulty. We can not undertake to comment on each of them, but will speak of them in a general way that will indicate our disapproval of the whole series.

The proposition, that the jury have the right to disbelieve such witnesses as, in their judgment, under all the circumstances of the case, are unworthy of belief, is not the law. The jury, although they are the judges of the credibility of the witnesses, have no right to arbitrarily disbelieve the testimony, unless where such witnesses have wilfully and knowingly sworn falsely to material facts in the case.

Whether plaintiff had placed the first contract on record in the proper office by the direction of George, or of his own motion, had nothing to do with his right to recover in this action, and the instructions of the court on that subject were highly calculated to mislead the jury. It was shown, not only that Hynes had refused to ratify the contract, but that he had no interest whatever in the land. Whether the contract was on record or not could make no difference. bound no one, and it is not claimed that it did.

It

Much irrelevant testimony was admitted, and some of the instructions are based upon hypothetical cases, supposed to have

Syllabus.

been made by such evidence. The effect was to confuse the jury. The subsequent contracts between the parties can have no possible connection with this transaction, unless it is proposed to show that in making such contracts the matter of the $250 was, in some way, adjusted with plaintiff. The note given by plaintiff to George was an individual transaction, and in no view was it proper evidence in this case.

In the last instruction of the series, the court undertook to give the jury a summary of the principal facts, which they were to consider in their deliberations on their verdict. It directed their attention only to facts favorable to defendants, and left out of view all that tended to illustrate plaintiff's theory of the case. It is the duty of the jury to consider all the facts, and when the court assumes to direct their attention to the facts, it should refer them to all the facts, so as to present the case fairly for both parties. Otherwise, the jury might understand the facts stated in the instructions are the only ones necessary to be considered in deliberating on their verdict. Chicago, Burlington and Quincy R. R. Co. v. Griffin, 68 Ill. 499.

The judgment will be reversed and the cause remanded.

Judgment reversed.

145 443 80 54

454 329

54

157 471 80 54 78a 441

JOHN P. HARRIS et al.

t.

PAUL CORNELL et al.

1. PLEADING-demurrer in chancery. A demurrer in chancery is always to the merits, and in bar of the relief sought. It admits all the facts which are well pleaded, but not such matters of law as may be sug gested in the bill, or which may be inferred from the facts or conclusions upon them which the complainant may have reached.

2. EXECUTION-void, when issued from a court which has been abolished. Where a court is abolished by an act of the legislature, and the whole jurisdiction transferred to another court, an execution issued out of the

Syllabus.

court so abolished is void, and a sale made under such an execution is a nullity.

3. PARTIES-who are within the meaning of the law, so as to be concluded by decree. Whilst it is true that parties to a decree in chancery are concluded by it, it is also true that only parties whose interest can be affected can be parties to a judicial proceeding.

4. So, where a bill was filed seeking to affect the title to certain real estate, which had been claimed by one who, before the filing of the bill, had been adjudged a bankrupt by the District Court of the United States, under the bankrupt law of the United States, of 1841, and an assignee of his estate appointed, it was held, that although the bankrupt was named as the party, he was not, within the meaning of the law, a party to the proceeding for the purpose of concluding those claiming title to the land, through him, and that they were not affected by the decree rendered in the case.

5. The assignee in bankruptcy in such case was an indispensable party to the proceedings, being the holder of the title of the bankrupt, and if he was not made a party, no decree affecting the property could bind him.

6. LIEN OF JUDGMENT. A judgment is a lien upon real estate for seven years, provided an execution is issued upon it within a year, but not otherwise.

7. Where a party obtained a judgment in 1837, but had no execution issued until in 1840, and in the meantime a purchaser from the judgment debtor had put a deed for the land purchased by him on record, the title of such purchaser was unaffected by the judgment or execution.

8. PRACTICE-how to present the question of laches. The question whether a complainant in a bill in chancery has been guilty of such laches as to preclude him from obtaining the relief sought, is usually presented by answer, and, it seems, is not proper to be considered on de

murrer.

9. CHANCERY-impeaching a decree on the ground of fraud and perjured testimony in obtaining it. A decree was obtained directing a sheriff to execute a deed, in pursuance of a sale made under an execution which was, in fact, issued by a court which had been abolished, but which, in the bill upon which the decree was rendered, was falsely alleged to have been issued out of a court to which the jurisdiction of the abolished court had been transferred, and there was no defense made, the cause referred to the master, and a witness testified before him that there was no deed for the land in controversy, appearing of record, to one of the nonresident defendants, when, in fact, such deed was, and had been for nearly twenty years, on record, and the master accordingly reported that said non-resident defendant had no title to the land. Upon a bill filed by the

Opinion of the Court.

heirs of the non-resident defendant, to impeach this decree for fraud and perjured testimony in procuring it, setting up these facts and showing that before the bill was filed on which said decree was rendered, the non-resident defendant, to whom the deed of record appeared to have been made, had been adjudged a bankrupt in the District Court of the United States, under the bankrupt law of the United States, of 1841, and an assignee appointed, who was not made a party to the bill upon which the decree sought to be impeached was rendered, it was held, that the bill showed such a state of facts as required an answer, and it was error to sustain a demurrer to it.

10. ASSIGNEE IN BANKRUPTCY-holds real estate of deceased bankrupt in trust for his heirs after debts are barred. Where the owner of real estate is adjudged a bankrupt, and an assignee is appointed, and no claims are filed and proved against the estate, and the Statute of Limitations has run against all his debts, and the bankrupt is dead, the assignee holds the real estate of the bankrupt as a naked trustee for the heirs of the bankrupt.

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

Mr. JOHN WOODBRIDGE, for the appellants.

Messrs. SLEEPER & WHITON, for appellees Clement and Merton; Messrs. PAGE & PLUM, for appellees Bliss and Stevens; Messrs. DENT & BLACK, for appellee Stinson.

Mr. JUSTICE BREESE delivered the opinion of the Court:

The bill of complaint set out in this record was exhibited on the chancery side of the circuit court of Cook county, at the February term. 1871, by John P. Harris and three others, complainants, claiming to be heirs at law of one Benjamin Harris, deceased, and against Paul Cornell, Elisha C. Fellows and others, the scope of which will appear from the allegations therein.

It appears the parties to the bill make claim of title to the premises through the same person, namely, one Mark Noble, Jr.

The title of Benjamin Harris, the ancestor of complainants, comes through regular conveyances from the patentee

Opinion of the Court.

by

of the land, one Jonathan Smith, who first conveyed it, deed of May 20, 1836, to one Robert M. Draper, who, on the 17th June of the same year, conveyed it by deed to Mark Noble. Jr., by a misdescription. By deed containing the same misdescription. dated October 6, 1836, Noble and wife conveyed the land to Benjamin Harris, which deed was not recorded until August 1, 1837.

One Jefferson Gardner, at the July term, 1837, of the Municipal Court of the city of Chicago, recovered a judgment against Noble for two hundred and fifty-two dollars and sixtyeight and one-half cents, on which no execution issued or other proceedings had until February 5, 1840, on which day a fi. fa. issued out of the clerk's office of said court, under which the sheriff, on the 27th November, 1840, sold the land to Gardner, but issued to the purchaser no certificate therefor, or if issued, the same was lost or mislaid. In September, 1847, Gardner and wife executed a deed to Nathan W. Watson, by the same erroneous description, of this land, who, on May 10, 1849, executed a deed with the same wrong description, to one Charles B Phillips. Phillips, on the 28th June, 1849, executed a deed with the same wrong description, to Electa Watson, who, having intermarried with one Garnsey, on the 10th of August, 1853, executed a deed for an undivided half of the tract, with a correct description thereof, to the defendant Paul Cornell, and on the 11th May, 1854, she, with her husband, executed a deed for the other undivided half, with a correct description, to the defendant Elisha C. Fellows. By this, it appears appellants' title is derived wholly through deeds from the patentee-appellees Cornell and Fellows through and under the judgment obtained by Gardner against Noble.

In August, 1854, Cornell and Fellows impleaded, by bill in chancery, in the Cook circuit court, Draper, Mark Noble, Jr., Benjamin Harris and others named therein, to reform these deeds misdescribing the land, and to establish their title to the same, and to require the sheriff to execute a deed