110 652 ,162 184

Syllabus.

ple v. Sherman, 10 Wend. 299, The People v. Dalton, 15 id. 581, and Lowenthal v. The People, 32 Ala. 589. So much of the reasoning in the opinions in the cases cited as is applicable to the present decision may be read as being in harmony with the views expressed in this opinion.

No error affecting the merits of the case appearing in the record, the judgment is affirmed.

Judgment affirmed.

JOHN KENLEY et al.

v.

DANIEL S. BRYAN.

Filed at Mt. Vernon September 27, 1884.

1. DECREE-bill to review and impeach. A decree of a court can not be impeached or reviewed except for fraud or error.

2. ADMINISTRATION-sale of land to pay debts-subject to incumbrance. The county court has the jurisdiction and power to order the sale of real estate of a decedent, when necessary, to pay debts of the estate, notwithstanding the same may be incumbered by a mortgage; and there is no error in directing the sale to be made subject to the mortgage. So an estate in remainder may be sold subject to the prior life estate.

3. SAME-sale of real estate subject to dower. On application by an administrator for a decree to sell real estate to pay debts, the county court has jurisdiction to order the assignment of dower and homestead to the widow of the intestate, and may properly direct the sale of the portion set off as dower, subject to the widow's life estate.

4. SAME-sale to widow in payment of her specific allowance, not fraudulent. The sale of land assigned to the widow of an intestate by an administrator, to her, subject to the dower and homestead estate, she being the highest bidder, can not be impeached for fraud merely from the fact that she paid no cash, but gave her receipt to the administrator for the amount of her bid, against her specific allowance. Her receipt operated to release the estate of so much indebtedness.

5. SAME-fraudulent combination. At an administrator's sale of lands an eighty-acre tract was struck off to a bidder for $250, subject to a mortgage and taxes, amounting to $350, the land not being worth more than from $600

Brief for the Appellants.

to $800. The purchaser failing to take the land, the husband of the widow of the intestate agreed to take the land at the bid, when the administrator conveyed to the bidder, and he quitclaimed to the other party, who paid the bid and discharged the incumbrances: Held, that these facts did not even tend to show a fraudulent combination to obtain the property at a sacrifice.

6.

SAME-remedy to impeach sale of land en masse. If two separate and distinct tracts of land are sold by an administrator as a whole, without first offering them separately, such fact affords a ground of exception to the report of sale, but not for impeaching the sale years afterwards by a bill in chancery. The remedy in such case is by motion to set aside the sale before its confirmation.

7.

HOMESTEAD-of a reassignment on change of value. The administrator of an estate filed his petition in the county court for an assignment to the widow of the intestate, of dower and homestead in the lands of the estate, and for an order of sale of the residue for the payment of debts. A decree was entered accordingly. Subsequently the heirs exhibited their bill in chancery to impeach that decree, or rather the sale made by the administrator . under it, for fraud, and among other things prayed for a reassignment of the homestead. It was considered there was no case made for such reassignment, even if that might be done. If, because the land assigned for homestead has increased in value, a new assignment may be had to reduce the quantity, it would seem that when it has depreciated in value, for the same reason a new assignment might be had to increase the quantity.

APPEAL from the Circuit Court of Clay county; the Hon. WILLIAM C. JONES, Judge, presiding.

Messrs. COPE & CHESLEY, for the appellants:

If an administrator's deed may be attacked in the circuit court, it must be by bill to remove a cloud upon title, and on the ground that the sale is absolutely void. The decree and subsequent orders of the county court can not be attacked collaterally.

A bill of review, or a bill to impeach a decree for fraud, or any bill by which it is sought to suspend, modify or set aside a decree or order of court, must be brought in the court where such decree was rendered. After a hearing in one court, a party may have further remedy by appeal or writ of error,

Brief for the Appellee.

or bill of review, etc., but he is not permitted to change the venue to another forum. The county court having full concurrent jurisdiction with the circuit court in all matters relating to the settlement of estates, this rule applies to the orders of the county court. Moffit v. Moffit, 69 Ill. 641; Bostwick v. Skinner, 80 id. 147; Housh v. People, 66 id. 178; Von Heller v. Johnson, 57 id. 109; Cox v. Garst, 105 id. 343. As to inadequacy of price, see Allen v. Shepard, 87 Ill. 315.

Messrs. COCKRELL & MONROE, for the appellee:

A homestead is not liable to sale, directly or indirectly. It is exempt for all purposes. It can not be sold subject to such interest. Hartman v. Schultz, 101 Ill. 437.

A bill of review is a chancery proceeding, and county courts do not have general chancery powers. The county court can not adjudicate an adverse title, consequently a bill of review in the county court can not reach and cancel deeds, and for this reason can not furnish an adequate remedy.

A bill of review can only be filed for error of law and newly discovered evidence. Error of law must be such as arises from mistake or inadvertence, and not from error in the judg ment of the court. Callen v. Shields, 2 Stew. & Port. 417; Younge v. Forgey, 4 Heyw. 189.

It is said that complainant, and all others interested, being parties to the proceedings in the county court, can not and could not have any remedy except by appeal or writ of error. Where a decree or sale is void, the party whose rights are sought to be affected need not appeal, but he may treat the proceeding as a nullity, and file his bill to set aside such sale as a cloud upon his title. In such case he may attack the sale or proceeding collaterally, and is not bound to take an appeal or prosecute a writ of error in order to protect his rights.

There was no necessity to sell the land subject to the homestead of the widow, nor could it be sold in that way.

1

Opinion of the Court.

To sanction such sales would be to open up a lottery in real estate, and lead to the sacrifice of many valuable estates, as has been the case here.

The title to the eighty-acre tract never vested in Williams, for the reason he refused to comply with the terms of the sale, consequently the deeds to him, and from him to Ogden, and from Ogden to Henry Kenley, are all void,.and no money was paid by the widow on her purchase, though the sale was ordered for cash.

We do not think that homesteads, after fair assignments have been made, can be reassigned accordingly as the land increases or decreases in value; but we do think that a reassignment should be made where it appears that an unreasonable amount has been set off.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that in February, 1878, Abijah S. Bryan, of Clay county, departed this life intestate, leaving a widow and a number of children as his heirs. He died seized of several tracts of land named in the bill. A portion of the property was free from incumbrance, but eighty acres, consisting of two forty-acre tracts adjoining, but in different sections in the same township, was incumbered by a mortgage for $300. Mary E. Bryan, a daughter, and Henry Johnson, and the other heirs, were minors, except Daniel S. Bryan, at the time of filing the bill. The widow married one Isaac D. Ogden, by whom she had one child, also a minor. John Kenley, a brother of the widow, at the February term, 1878, of the county court, was appointed administrator of the estate, and qualified, and entered upon the duties of the office. At the February term of the county court, 1879, Kenley, as administrator, filed a petition asking for the assignment of dower and homestead to the widow, and for an order for the sale of the remainder of the real estate for the payment of debts

Opinion of the Court.

owing by the estate. It appears from the decree of the county court, that homestead and dower were assigned to the widow of one hundred and six and two-thirds acres out of two hundred acres owned by deceased at the time of his death, and the court decreed that all or so much of the remaining lands as might be necessary be sold for the payment of debts, and also decreed a sale of the land assigned as dower and homestead subject to those interests. The administrator advertised and sold the land subject to dower and homestead, and the widow became the purchaser at $200, and he executed to her a deed for the property. The widow subsequently departed this life, leaving surviving her husband, and one child by that marriage. Mary E. Johnson and her husband reside on the homestead, and a minor brother and sister also reside with them. When the administrator offered the eighty acres incumbered by the mortgage, one B. H. Williams bid it off at $250, subject to the mortgage,—and it is charged this was done with a secret understanding as to its future disposition. The administrator reported the sale to the county court, and it was approved. It is charged that Williams paid no consideration, but receipts of the widow on her specific award were fraudulently used in such payment; that Williams, without consideration, quitclaimed the land to Ogden, and he and wife, without consideration, quitclaimed to Henry Kenley, or to one of two other persons named in the bill; that Kenley has paid the mortgage, and is in possession of the land and in the receipt of the rents and profits without having paid anything on it but the amount of the mortgage; that this land was worth $800, and that by the combination charged, the creditors and heirs have been defrauded; that the debts against the estate, over and above the widow's award, amounted to between $300 and $400, which have not been paid. The bill prays that the cause be reviewed and the decree of the county court set aside, and the sales by the administrator, and all conveyances subsequent thereto, be