Opinion of the Court.

also sustained them, and there was no evidence save the testimony of appellees' attorney, John Morris, to weaken them.

All the circumstances developed in the case establish, most clearly, as we think, the perfect fairness and honesty of the arrangement existing between appellants in regard to these goods. Dreyer had been "burnt out" in the disastrous fire of October 9, 1871, and with a wife and children had to face the world, and provide for their support without a dollar of his own, except what he might recover from the insurance companies. In this predicament he applied to his uncle, Leo Lefman, a man of means, doing a large business, to help him. This he did by purchasing this store of goods, Dreyer to have his living and that of his family from the proceeds of sales, and nothing more. All the business was conducted by him as agent. His bank account was kept in his name, as agent for Mr. Lefman," and he drew his checks "David Dreyer, Agent;" on his bill heads and on his wagons was the same notification.

66

Dreyer was the only relative Lefman had, and after his misfortune his uncle determined to provide for him until he could do better. When Dreyer came to his uncle, "he came naked, with not money enough to start a pea-nut stand."

It is admitted by appellees, a person may enter into a contract to labor for another during his life, in consideration of his maintenance and support by such other. How does this arrangement differ in spirit from the one stated? At the time this arrangement was made between the uncle and nephew, although the latter was indebted to appellees on a liability incurred in June, 1871, he had incurred no liability to them on the faith of these goods, and, being the property of Lefman, they could not be seized to satisfy Dreyer's debts. When he dealt with appellees, subsequently, they were sufficiently warned that Dreyer was doing business as an agent and not on his own account, and his bank account, bill heads and inscription on his wagons told appellees he was not the owner of the property in which he was dealing and using.

What justice is there, under the circumstances developed in

Syllabus.

this record, in appropriating the property of one man to pay the debts of another? None whatever.

The principal facts supposed to constitute fraud are flatly denied in the answer, the denial supported by testimony, and no evidence was given sufficient to impeach their answers or testimony.

There are no equities on the side of appellees, and the decree of the circuit court was wrong, and it must be reversed.

Decree reversed

80 564 25a 87

80 564 141 527

40a 495

ABRAHAM R. WING et al.

V.

CATHARINE L. DODGE et al.

1. JUDICIAL SALE―valid collaterally, if the court had jurisdiction. If the court ordering a sale of real estate has jurisdiction of the subject matter and of the parties, no mere errors can have any effect upon the sale, or the title under it. Until reversed the decree confers power to sell and pass the title,

if there was jurisdiction, however erroneous the decree may be.

2. STATUTES CONSTRUED-sale of estates of lunatics, etc. The act of 1853, authorizing the sale of the real estate of any idiot, lunatic or distracted person, for certain specified purposes, has no reference whatever to non-resident owners. It applies only to cases where the idiot, lunatic or distracted person and his conservator reside in this State. Sales by non-resident conservators are authorized by the act of 1865.

3. CONSERVATOR'S SALE-jurisdictional facts. A proceeding to sell the lands of a lunatic, etc., under the act of 1853, can only be instituted by a conservator of this State and on behalf of a resident of this State, and the petition must show the facts and specify the purposes for which the sale is sought, and these must be for one or more of the objects named in the act. But when application is made by a non-resident conservator or guardian of an insane person, the law does not require the petition to state the purposes for which the property is to be sold. It seems sufficient to confer jurisdiction for the petition to show that the court of the State where the conservator resides has required the sale, without reference to the application of the proceeds.

4. SAME of the notice of the application. Notice published in a daily newspaper, three insertions in each successive week, the first being not less than thirty days before the presentation of the petition, of the time and place

Syllabus.

of presenting the petition, requesting all persons interested to show cause why the prayer of the petition shall not be granted, is sufficient to give the court jurisdiction on an application by a non-resident conservator for the sale of real estate. The notice need not be inserted in each daily issue of the paper.

5. SAME-findings as to jurisdiction conclusive in all collateral proceedings. Where the court, in a decree ordering the sale of lands of a non-resident idiot, lunatic, etc., finds that the petitioner was regularly and legally appointed guardian or conservator of the owner, by the probate court of another State, under the laws of such State, and that the petitioner had fully complied with the law in procuring the proper order of the probate court of such State for leave to sell the lands, and executed the requisite bonds, this finding will be conclusive in all collateral proceedings, and upon the purchaser of the property in a suit by him to enjoin the collection of the purchase money.

6. CONSERVATOR OF INSANE PERSON-acts of, binding, until removed. Where the statute of a State authorizes the probate court to appoint a married woman guardian of an insane person, etc., without the concurrence of her husband, and the court appoints the wife of an insane person as his guardian, her acts will be legal and binding until removed, whether the statute contemplated such an appointment or not. Whether the wife might be so appointed, in nowise affects the power of the court, even though its action was erroneous.

7. JUDICIAL SALE-sale of guardian through an agent. Where the sale of real estate by a foreign guardian of an insane person is made through an agent, the guardian not being present making or directing it, and the guardian adopts the act of her agent, and the court approves the sale, there being no exceptions on this account, and the sale is fairly made and for a good price, it will be binding on the purchaser, and it is doubted whether the sale could be impeached in a direct proceeding.

8. SAME-caveat emptor as to purchaser. Where the court ordering sale of real estate has jurisdiction of the subject matter and of the proper parties, even if the proceedings are irregular and erroneous, the purchaser can not avoid the sale, as the doctrine of caveat emptor applies in all judicial sales.

9. SAME failure of consideration no cause for setting sale aside. If the crier of a judicial sale of real estate on behalf of the guardian of an insane person states publicly, at the sale, that the guardian will pay certain assessments on the property, which is not done, this will furnish no ground to set aside the sale by the purchaser, or furnish any grounds of equitable relief. His remedy, if any, is at law, for a failure of consideration, when sued on his notes for the purchase money.

10. INJUNCTION—damages on dissolution. After the dissolution of an injunction the defendant may file his suggestions and claim damages, at any

Opinion of the Court.

time before the decree is signed and filed, and the court may dispose of the suggestions even after the decree is filed. It is error to refuse leave to file them before the decree is filed.

APPEAL from the Circuit Court of Cook county.

This was a bill in chancery, by Abraham R. Wing and J. Whitney Farlin, against Catharine L. Dodge, personally and as guardian of John C. Dodge, Andrew J. Brown, Albert J. Averill, John J. McKinnon, John W. Marsh and John C. Dodge, to enjoin the collection of notes given for the purchase money of lands sold under a decree of court, and to set aside the sale.

Mr. JOHN BORDEN, and Mr. D. G. TUNNICLIFFE, for the appellants.

Messrs. GOUDY & CHANDLER, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Complainants having become purchasers of real estate at the guardian's sale, executed their notes for the purchase money, received deeds of conveyance from the guardian, and the sale having been approved by the circuit court of Cook county, they ask that the collection of the notes be enjoined and the sale set aside and canceled. The grounds urged are, that the court failed to acquire jurisdiction, and the sale was void, and hence there was no consideration for the notes, and that their collection should be enjoined; that the guardian was not present at, nor did she conduct the sale in person. Also, tha the complainants are entitled to a credit on the notes, even if the sale was legal, because it was announced at the sale that the guardian would pay certain park assessments due in 1872, which she has not done.

The first and vital question in the case is, whether the court acquired jurisdiction of the persons of the parties and the subject matter of the suit. If so, then all errors, merely, can have no effect upon the sale or the title under it. Until reversed the decree would confer ample power to sell and pass the title

Opinion of the Court.

of the lunatic, if there was jurisdiction, however erroneous the decree.

It is urged that the circuit court did not acquire jurisdiction in this case, as the petition did not state the object specified in our statute authorizing a sale.

The act of 1853, section 1, page 215, provides that whenever it shall become necessary to sell the real estate of idiots, lunaties or distracted persons, for the purpose of paying debts, supporting a family, or educating children, or when it shall be proper to make such sale for the purpose of investing in real estate, the conservator shall petition the circuit court, etc., asking an order authorizing such sale. This act was adopted in reference to such persons residing in our State, and without the slightest reference to non-resident owners of property in this State. A proceeding, therefore, under this act could only be instituted by a conservator of this State, and on behalf of a resident of this State; and the petition would be required to show the facts and specify the purposes for which the sale was sought, and the petition could only be for one or more of the objects specified in the act.

But for the purpose of giving the conservators of non-residents owning real estate in this State the power to make sales for the necessities of their wards or their estates, the General Assembly in 1865, (see Sess. Laws, page 109, section 2) conferred upon them that power. That act provides that the conservator, guardian, or committee of any non-resident insane, lunatic or distracted person, who shall have obtained, or shall obtain an order from any court of record having jurisdiction over such matters, in any State where such guardian, etc., shall be appointed, for the sale of any real or personal property, or any interest therein, belonging to such person, situated in this State, upon filing a certified copy of such order for record in the office of the clerk of the circuit court in the county in which the property is situated, by petition to the circuit court of the county, to obtain an order authorizing such conservator, etc., to sell and transfer such property, etc., and to make deeds, etc. The section then provides for notice to be given, etc.