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Statement of the case.
first publication of said notice, and the said John C. Hannas, defendant, having been severally three times called in open court, to plead, answer or demur to the complainant's bill, came not, but herein made default, it is therefore ordered, adjudged and decreed that the same be taken for confessed against the said defendant. And the court having ordered a reference to a master to take proofs of the matters stated in the bill, and the said master having made report thereof to the court, which said report is hereby approved and confirmed, and this cause coming on for a final hearing upon the bill and master's report, and the court being fully advised in the premises, doth find: That the allegations in said bill are true; that the court has jurisdiction of the subject matter and the parties in the cause; that the defendant, John C. Hannas, received the notice required to be sent him, by mail, at San Francisco, California; that complainant, on April 27, 1868, was a widow, and the owner in equity and entitled to a deed of sub-lot 9, aforesaid ; that on said date John Boyd conveyed to defendant, with complainant's consent; that said conveyance was made to defendant, in trust for complainant, upon certain conditions, to-wit: That defendant should, within one year, erect upon said premises a house of not less value than $2000, should fence said premises and keep down the taxes, and in default of so doing was to hold the premises for the sole and separate use of complainant; but should he perform his said covenants in good faith, then an undivided half of said premises was to be conveyed to defendant in fee, and the remaining undivided one-half to be held in fee by complainant; complainant and defendant intermarried April 30, 1868, and cohabited until 1875; November 20, 1868, complainant and defendant conveyed to Homer Cook, as stated in the bill; that said defendant wholly failed to perform the covenant entered into by him; that he failed to build the fence;
that he failed to build a good, substantial house, within one year, at his own cost, but built
Statement of the case.
a poor dwelling house, continually in need of repair, and the cost of which was largely paid by complainant from her own means, and which was not completed sufficiently for a residence until nearly three years after the date of said deed; that defendant has not kept down the taxes, but complainant has paid them since 1875; defendant, without sufficient cause, deserted complainant for five years. It is therefore ordered, adjudged and decreed by the court, that the rights and interests of defendant, John C. Hannas, in and to said real estate, under and by virtue of anything in said deed of trust to said Homer Cook recited or contained, or otherwise, be forfeited, and that said defendant be forever barred and foreclosed from claiming or asserting any right, title or interest whatsoever therein, and that the complainant, Margaret Hannas, have all of said real estate held in trust for her, and for her use and benefit, as in the way and manner provided in said deed of trust to said Homer Cook.
Homer Cook, the trustee, indorsed on the decree the fol. lowing:
"I hereby consent to the entering of the within decree, and agree to hold the title to the premises therein described, in trust, as declared and defined by the said decree, or by any decree the court may enter in said suit, and hereby consent to be made a party thereto.
HOMER Cook.” “Witness: E. L. Upton.”
After the rendering of the above decree, and before suing out this writ of error, Mary E. Knowles purchased the lot from the complainant, and at the request of the complainant, the trustee, Homer Cook, conveyed said lot to said Mary E. Knowles, a part of the purchase money therefor having been paid before suing out the writ of error, and the balance being secured by the notes and mortgage of said Mary E. Knowles and her husband, and said Mary E. Knowles is made a party to the writ of error as a terre tenant.
Briefs of Counsel.
Numerous errors are assigned, fully raising all the questions discussed in the opinion.
Mr. CONSIDER H. WILLETT, for the plaintiff in error:
The trustee was a necessary party, and a decree without making him a party was a nullity. In litigation respecting trust property, both the trustee and cestui que trust must be made parties. Scanlan v. Cobb, 85 Ill. 296.
As to necessity of making all persons having an interest parties, counsel cited McGraw v. Bayard, 96 Ill, 146; Hopkins v. Roseclare Lead Co. 72 id. 373; Brown v. Riggin, 94 id, 560; Rees v. Peltzner, 75 id. 475; Shinn v. Shinn, 91 id. 477; Roberts v. Fleming, 53 id. 196; Hellman v. Schneider, 75 id. 423; Harris v. Cornell, 80 id. 54; Atkins v. Billings, 72 id. 597; Story's Eq. Pl. secs, 207, 209.
The issuing of a summons was essential to give the court jurisdiction. Jacobus v. Swett, 14 Ill. 359.
Purchasers are held chargeable with notice of everything which a man of ordinary caution and prudence ought to know when his attention is directed to the facts, or to those channels which would lead to the truth. The law will not allow him to shut his eyes to the information necessarily indicated by the process under which he claims. Hamilton v. Quimby, 46 III. 90; Doyle v. Teas, 4 Scam. 249; Scott v. Moore, 3 id. 319.
The purchaser was bound to know that the decree was a nullity unless Homer Cook, the trustee, was made a party to the suit.
Mr. CHARLES H. FERRY, for the defendant in error, Margaret Hannas:
The correct mode of taking advantage of the want of a necessary party is by demurrer, when the defect appears on the face of the bill. Objection can not be made, on error, after the bill has been taken for confessed. Burger v. Potter, 32 Ill. 66; Stookey v. Carter et al. 92 id. 129.
Brief for the Defendant in Error.
If an error was committed in this regard, it did the plaintiff in error no injury, and would be no ground for reversing the decree. Stookey v. Carter et al. 92 Ill. 133.
The trustee consented, in writing, to be made a party defendant, and to the entry of the decree. It was not necessary that the decree should recite it was entered by consent. Haas v. Chicago Building Society, 80 Ill. 248.
It appears that the record fails to show any summons, but the clerk, in the notice to the defendant as a non-resident, states that a summons was issued, which is sufficient under the rule laid down in the cases of Tompkins et al. v. Wiltberger et al. 56 Ill. 35, Tibbs v. Allen, 27 id. 119, and Millett et al. v. Pease et al. 31 id. 377.
Messrs. SCHUYLER & FOLLANSBEE, for the purchaser and terre tenants:
Subsequent purchaser is not affected by reversal of decree. McJilton v. Love, 13 Ill. 486; Goudy v. Hall, 36 id. 316; Feaster v. Fleming, 56 id. 457; Horner v. Zimmerman, 45 id. 14; Harris v. Lester, 80 id. 307; Eldridge v. Walker, id. 270; Mulvey v. Gibbons et al. 87 id. 367; Wadhams et al. v. Gay, 73 id. 415; Guiteau v. Wisely, 47 id. 433; Barlow et al. v. Standford et al. 82 id. 298.
One voluntarily becoming a party will be bound. Walker V. Abt et al. 83 Ill. 227; Short et al. v. Raub, 81 id. 509; Horner v. Zimmerman et al. 45 id. 16; Greenman v. Harvey, 53 id. 386.
The absence of the summons from the record will not overcome the prima facie evidence that one was properly issued and duly returned, the decree having found “that the court had jurisdiction of the subject matter and the parties in the cause. Prout v. The People er rel. 83 Ill. 154; Turner et al. V. Jenkins, 79 id. 228; Miller v. Handy, 40 id. 448; Mulrey v. Gibbons et al. 87 id. 367; Haworth v. Huling et al. id. 23.
Opinion of the Court.
Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:
Inasmuch as the circuit court unquestionably had jurisdiction of the subject matter of the litigation, if it also had jurisdiction of the persons affected by the decree, it must follow, that so far as Mary E. Knowles is concerned, the errors assigned in regard to the admissibility and sufficiency of the evidence are unimportant, for, being a purchaser in good faith, while the decree was unreversed and in full force, she will be protected, although there may have been error in rendering the decree. Barlow et al. v. Standford et al. 82 Ill. 298; Mulvey v. Gibbons et al. 87 id. 367; Wadhams v. Gay, 73 id. 415.
First, then, was the notice to the defendant, John C. Hannas, sufficient? The 12th section of chapter 22, of the Revised Statutes of 1874, entitled “Chancery,” is as follows: “Whenever any complainant, or his attorney, shall file in the office of the elerk of the court in which his suit is pending, an affidavit showing that any defendant resides or hath gone out of this State, or on due inquiry can not be found, or is concealed within this State so that process can not be served upon him, and stating the place of residence of such defendant, if known, or that upon diligent inquiry his place of residence can not be ascertained, the clerk shall cause publication to be made in some newspaper printed in his county, containing notice of the pendency of such suit, the names of the parties thereto, the title of the court, and the time and place of the return of the summons in the case; and he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant whose place of residence is stated in such affidavit.” The affidavit here filed fully conforms to these requirements. It alleges that complainant “has made due inquiry to learn the place of residence of the defendant, John C. Hannas, and is unable to ascertain the same; that his last known place of