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Opinion of the Court.
are several devisees, to suffer the rights of all to be concluded and swept away by the admissions of one, and these admissions made in their absence and without their knowledge or sanction. If the admissions here could have gone to the jury and affected the rights of none but the one making them, no error would have been committed; but such was not the case. The admissions, notwithstanding the ruling of the court, went to the issue devisavit vel non, in which all the devisees were equally interested.
There are some authorities which support the ruling of the circuit court, but we think the decided weight of authority is the other way. We have been cited to Atkins v. Sanger, 1 Pick. 192, as a precedent in favor of the admission of the evidence. The case seems to favor the view of appellees, but the court, in the conclusion of the opinion, expressly state that the decision does not interfere with the case of Phelps v. Hartwell, 1 Mass. 71, where, as we have heretofore seen, the court decided that the evidence was not admissible. Armstrong v. Farrer, 8 Mo. 627, is another case relied upon, but this case, upon examination, will be found to be predicated mainly on Atkins v. Sanger, which affirms the Phelps case. Other cases have been cited, but it will not be necessary to review them here. We are of opinion that the rule we have indicated is in harmony with the weight of authority, and one, too, better calculated to preserve the rights of parties in such cases.
For the error indicated, the judgment of the Appellate Court will be reversed and the cause remanded.
31a 5741 110 53 148 2131 110 33 157 93 110 53 162 344
Filed at Ottawa May 19, 1884.
53 60a 242
53 179 255
1. PURCHASER — reversal of decree - effect upon title of purchaser. 110 Where the title of a husband in real estate is, by a decree on bill to enforce a trust or specific agreement, vested in the wife, and before appeal or writ of 10 error to teverse the decree the wife sells the property to a third person, in 110 53 good faith, who pays a part of the price and secures the balance by mortgage 94a *298 on the premises, and the trustee holding for the wife conveys to such pur 110
53 chaser in pursuance of such decree, the title of the purchaser can not be
197 9492 defeated by a reversal of the decree for error, if the court rendering it had
101a 10478 jurisdiction of the subject matter and of the persons of the parties in interest.
53 2. NON-RESIDENT DEFENDANTS IN CHANCERY-publication of notice
202 sufficiency of affidavit. An affidavit of non-residence in a chancery case, to authorize publication of notice, alleged that the complainant had made due inquiry to learn the place of residence of the defendant, and was unable to ascertain the same; that his last known place of residence, so far as affiant's personal knowledge went, was the city of Chicago, in this State, which place he left about six years before, and, as affiant was informed and believed, went to California; that about two years before, affiant was informed that he was in San Francisco, in the State of California, since which time affiant has, upon due inquiry, been unable to find where he was residing: Held, that the affidavit fully complied with the statute, and was amply sufficient.
3. Same—sufficiency of the notice-absence of the summons. A notice published against a non-resident defendant in a bill in chancery, setting forth the pendency of the suit, the names of the parties thereto, the title of the court, the time and place of the return of the summons, and that a summons had been issued so returnable, is sufficient.
4. Where it appears by the clerk's certificate that he sent a copy of a notice by publication, by mail, addressed to the defendant at his last known place of residence, as stated in the affidavit, and it is further proved that the defendant actually received such notice before the return day of the summons, and in ample time to have made defence to the suit, the circuit court will have jurisdiction over the person of the defendant, although no summons is found in the record.
5. The positive recitals in a notice to a non-resident defendant in a chancery suit, published by the clerk of the court, and the inference to be drawn from recitals in the decree that due notice of the pendency of the suit was given, and the presumption that the clerk did his duty by issuing a summons
Statement of the case.
against defendant, are not overcome by the mere fact that no summons is found in the record.
6. PARTY—becoming a party voluntarily—its binding effect. One may waive the necessity of a formal summons, and come in on the hearing of a suit in chancery, and consent to be treated as a party to the decree and to be bound by it; and this will obviate any error there might be in not making him a formal party in the bill, and he will then be bound by the decree.
7. ERROR—as to one not complaining. An error that does not affect the party appealing or prosecuting a writ of error, can not be urged by him as a ground of reversal.
8. PRACTICE-time to object-as admissibility of evidence. A party can not stand by and permit improper evidence to be given, and object to its competency for the first time in this court. So when a party is duly served he is theoretically in court, thongh defaulted, and will not be allowed, on error, to object for the first time to the introduction of secondary evidence.
9. PRESERVING EVIDENCE-in chancery. Where the findings of fact by the court sustain the decree, this will be sufficient, although the evidence is not preserved in the record by certificate.
10. DECREE PRO CONFESSO—whether proof required. Where the bill is taken for confessed, the sufficiency of the evidence admitted to sustain the decree can not be considered in this court. In such case a decree may be rendered without any evidence, and the only inquiry admissible on error is as to the sufficiency of the allegations of the bill.
11. LACHES — of the pleadings, to present that defence. Where the defence of laches is not interposed by the answer to a bill in chancery, and the bill does not seek to explain and excuse the delay, evidence of such defence is inadmissible.
WRIT OF ERROR to the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
Bill was filed by Margaret Hannas, in the office of the clerk of the circuit court of Cook county, on the 28th of August, 1880, wherein, among other things, it was alleged, that in pursuance of an ante-nuptial agreement, which is previously recited, she, and her husband, John C. Hannas, conveyed a lot located in Chicago, specifically described, to Homer Cook, in trust, that he should reconvey an undivided half of said lot to said John C. Hannas at the end of one year from that time, if said Hannas should, before that time, erect, build and finish upon said premises, in good and workmanlike man
Statement of the case.
ner, a frame dwelling house of the value of $2000, and should also, during said time, fence said lot, in good and workmanlike manner, said Hannas furnishing all the materials, of every kind, for said house and fence; and said trustee was to hold the other undivided half of said lot for said Margaret Hannas, her heirs, etc.; that it was further expressly provided, in and by said deed of trust, that if said John C. Hannas should fail, neglect or refuse to erect said dwelling house or fence on said lot, as and within the time provided, then said trustee was to hold all of said lot for the sole and separate use of the said Margaret Hannas, her heirs, etc., forever, free from the control, disposal, interference, debts and liabilities of the said John C., and the said trustee was to permit her to collect all rents to her sole and separate use, and she was to have full and absolute power to encumber or grant said lot, as if she were sole and unmarried. It was further therein alleged that the said John C. Hannas failed, neglected and refused to erect the dwelling house and fence the lot according to the terms and provisions of said trust deed, and that the said Margaret thereby became entitled to have all said lot, with the appurtenances thereon, to be held in trust for her sole and separate use, free from the control, disposal, interference, debts and liabilities of the said John C., with full and absolute power of conveying, etc.; that said John C. refuses to convey, but demands $1000 for his interest, etc. John C. Hannas is made defendant, and required to answer without oath, and it is prayed that said Margaret be decreed to have all of said lot held in trust for her use and benefit, as provided in said deed of trust, and that all the rights and interests of the defendant therein be declared forfeited, and that he be forever barred from asserting any title and interest whatsoever therein; and the bill concludes with a prayer for general relief.
An affidavit of Margaret Hannas was, at the same time, filed with the bill, which, after the caption, states that the
Statement of the case.
defendant is a non-resident of the State of Illinois; that she has made due inquiry to learn his place of residence, and is unable to ascertain the same; that his last known place of residence, so far as her personal knowledge goes, was Chicago, Illinois, which place he left about six years before, and, as she is informed and believes, went to California, and two years before, she was informed, he was in San Francisco. Notice was published in the “Chicago Legal News,” reciting the issuing of summons, when returnable, the affidavit of non-residence, etc., of which a certificate was filed with the bill; and the clerk also filed therewith a certificate that he mailed a copy of such notice to the address of the defendant, at San Francisco.
On the 20th of October, 1880, the defendant having made default, it was ordered that the bill be taken as confessed by the defendant. On the Sth of November, 1880, it was referred to the master in chancery, to take and report evidence in the cause. He made his report on the 2d of December, 1880, and reported, among other things, that the trustee, Homer Cook, testified that on the 20th of September, 1880, he received a letter in the defendant's handwriting, and signed by him, inclosing a copy of the notice by publication of the pendency of this suit. The letter was dated San Francisco, California, September 13, 1880, and post-marked at the same place, and made inquiry about the suit. The substance of the decree is as follows, after the caption :
"And now on this day comes the complainant, by Cook & Upton, her solicitors, and it appearing here, from the affidavit on file, that defendant is not a resident of Illinois, and that due notice of the pendency of this proceeding has been given by the publication, for at least four weeks, successively, by notice in the Chicago Legal News,' the first insertion being August 28, 1880, prior to the first day of the October term, 1880, of this court, and by mailing a notice thereof to defendant at San Francisco, California, within ten days from the