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Opinion of the Court.

under the sale to Gardner. At the June term, 1855, a decree passed reforming the deeds, and finding that Gardner had never received a certificate on the sale of the land by the sheriff, nor a deed for the same, and that he was entitled to a deed, and ordering the sheriff to execute such deed, to be delivered to complainants. Cornell and Fellows, to be by them recorded in the proper office for the benefit of all parties interested in the premises. It was further ordered, that these complainants, as the grantees of Electa Garnsey, late Watson, stand seized of the premises. that the deeds with erroneous descriptions be reformed. etc.

In pursuance of this decree, the sheriff, on the 18th October, 1855, executed a deed to Jefferson Gardner.

It is further alleged in the bill now before us, that Gardner well knew that he derived, by his purchase, no legal or valid title to the land, and that his said several grantees well knew the illegality and invalidity of Gardner's claim; and that Cornell and Fellows, before their purchase, well knew of the illegality of the sale by the sheriff to Gardner, and that they confederated and planned to defraud complainants of their title, right and interest to the same, and they aver that they had no knowledge of these proceedings by Cornell and Fellows until a short time before filing their bill of complaint, averring that their father, Benjamin Harris, at the time of filing the bill by Cornell and Fellows, and for many years previous, was absent from this State, and had no knowledge of any attempt by any one to divest him of his right and title; that he had been residing in the State of Iowa many years previously, and died there in August, 1863. It is further alleged, that no execution issued on the judgment of Gardner against Noble in sufficient time to make the same a lien upon this land, and that it had ceased to be a lien when the same issued, more than a year and a day having elapsed, and that the said execution was issued out of the Municipal Court after the same had been abolished by law, and was therefore void.

Opinion of the Court.

It is also averred, that the amount bid by Gardner for the land was but thirty dollars, while the same was worth many thousand dollars. The Cornell and Fellows decree is also challenged, on the ground that material evidence introduced in the case by them was false, and obtained by perjury, a witness having sworn, on the hearing, that no deed from Noble to Harris for this land was of record in the recorder's office, when, in fact, there was such a record in book S of deeds, at page 315, made August 1, 1837, and that the decree finding there was no such deed, was untrue and erroneous. It is also alleged, that no process was served upon Benjamin Harris, and none of the defendants answered the bill.

By an amendment to the bill, it is alleged that Benjamin Harris, after August 19, 1841, filed his petition in the District Court of the United States. for the then District of Illinois, to be adjudicated a bankrupt, under an act of Congress of that year to establish an uniform system of bankruptcy throughout the United States, the petition alleging he was a bankrupt, and to which was a schedule of his indebtedness, and duly verified; that the court adjudicated him to be a bankrupt, and appointed Cyrus J. Miller his assignee, whereby all the property of Harris was vested in Miller, as such assignee, concluding with an averment that all these things were done while the bankrupt act was in force, but precise dates can not be stated by reason of the destruction of the records by fire; that at the time Cornell and Fellows filed their bill, Miller had the legal title to this land, and resided in this State, but was not made a party to the bill, and was never notified of the pendency of that suit, claiming, by reason of failing to make Miller a party, the decree and sheriff's deed are void.

It is then averred, that by several acts of the General Assembly of this State, certain actions founded on promissory notes, bills of exchange, book accounts or simple contracts, were barred after five years from the time the cause of action accrued―averring that all the debts of the bankrupt,

Opinion of the Court.

Harris, were of this nature, and the causes of action on all his indebtedness accrued more than five years prior to filing this bill of complaint, and thereby all of said indebtedness was barred, and ceased to be a lien on the bankrupt's estate, whereby the assignee became a mere naked trustee of this property for the heirs of Harris, and that they have a right to demand and have a conveyance of the land from the assignee. The benefit of another statute of limitations, barring all actions on bonds or other evidences of indebtedness, in writing, after ten years, is invoked, averring that causes of action on all the indebtedness of the bankrupt accrued more than ten years, and were extinguished thereby, and claiming the assignee thereafter became a mere naked trustee for the heirs of the bankrupt, and liable to convey the premises to them on request. It is then alleged, that about thirty years have elapsed since the title of the assignee in bankruptcy to the land accrued, and none of his creditors have proved their debts against him or asserted any claim to the bankrupt estate, or to its proceeds, claiming that after such a lapse of time. they can not make proof of their debts, alleging that thereby the debts are paid and discharged, and the assignee has become a mere trustee of the premises for the heirs of the bankrupt, and is bound to convey the same to them on request.

The prayer of the original and amended bill was, that so much of said decree as finds that Benjamin Harris has no title or interest of record in said 59,75% acres. in said northwest quarter, section 13. 38, 14. prior to said bill of complaint of said Paul Cornell and Elisha C. Fellows, and that said Cornell and Fellows stand seized of said land, be set aside; that said deed of the sheriff of Cook county, or so much thereof as relates to said land last above described, be declared void, and be stricken from the records of the recorder's office of Cook county; that the execution issued February 5, 1840, upon said judgment, in favor of Jefferson Gardner, against said Mark Noble, Jr., be declared void, or that complain

Opinion of the Court.

ant's title to said 597 acres be declared not to be impaired thereby, and that the cloud upon their said title to said land, caused by the levy of said execution and the sale thereunder, be removed, and complainants' right and title thereto be declared; that said Miller may be decreed to hold the premises received by him as assignee in bankruptcy, in trust for the heirs of said Benjamin Harris, and be required to convey four-tenths thereof to said John P. Harris, Benjamin P. Harris, Chauncey W. Harris and Mary J. Smith, and that partition may be had so as to set off to said last named four persons their shares in severalty, and that they may be let into possession thereof.

At the April term, 1871, the default of Doe and other defendants was entered.

The defendants in real interest demurred generally to the bill. The demurrers were sustained, and the bill dismissed for want of equity, and complainants appeal.

It was omitted to be stated in the proper place, that in the bill filed by Cornell and Fellows it was alleged, that on the 13th of August, 1838, Harris and wife made a mortgage of one undivided 59 acres of said section to one Gholson Kercheval, to secure the payment of two thousand dollars, on certain terms and conditions specified in a certain bond executed at the same time, averring that when Harris executed the mortgage he had no title of record, or interest in the land described in it. And in the report of the master in chancery, to whom the case was referred, it is found that Harris, at the time of the execution of the mortgage, or at any time prior to the commencement of that suit, had no right, title or interest in the premises, so far as appeared by the records in the office of the recorder of Cook county; and the court, by its decree, declared this mortgage, so far as it might purport to be a lien on the premises, was null and void, and the ises released therefrom.

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The record of this cause is made an exhibit in appellants' bill, and its accuracy not questioned.

Opinion of the Court.

The questions raised by the demurrer are interesting, and have been argued elaborately and with great ability, but it seems to us the case can be disposed of without considering all of them.

It is alleged in appellants' bill of complaint, that the fi.fa. which issued on the judgment recovered by Gardner against Noble in the Municipal Court of the city of Chicago, bearing date February 5, 1840, and on which the land in question was sold to Gardner, was issued after that court had been abolished by law.

A demurrer in chancery is always to the merits, and in bar of the relief sought, and proceeds upon the ground that, admitting the facts to be true as stated in the bill. still the complainant is not entitled to the relief he seeks. It admits all the facts which are well pleaded, but not any matters of law which may be suggested in the bill, or which may be inferred from the facts or conclusions upon them which the complainant may have reached. Stow v. Russell et al. 36 Ill. 18.

It can not be questioned, the fact that the fi. fa. issued after the abolishment of the court is well stated, and the demurrer admits the fact. The legal consequence must be, the writ was void, in virtue of which no valid sale could be made. The sale in question was made under this writ to Gardner, on the 9th of March, 1840. The court was abolished by act of the General Assembly, approved February 15, 1839.

It was held in Newkirk v. Chapron, 17 Ill. 344, that the act was absolute and unqualified, abolished the jurisdiction of the Municipal Court, and transferred the whole to the circuit court, from which thereafter executions could issue, and from that court alone. The sale, therefore, under the execution so issuing from the Municipal Court. was a nullity.

To the same effect is Lee v. Newkirk, 18 ib. 550.

It is urged, however, by appellees, that the fact is proved by the Cornell and Fellows decree that the execution issued from the circuit court. It is so alleged in their bill, but the fact is not so found, either by the master in his report, or

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