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Opinion of the Court.

cancelled and set aside, and commissioners appointed to reassign homestead, and for an account of rents and profits, etc. Answers were filed denying all fraud, and insisting that the entire transaction was fair and legal in all its parts. It is denied that Henry Kenley had any connection whatever with the administrator's sale, but purchased the eighty-acre tract from Ogden for $800, which he has paid. On a hearing on bill, answers, replications and proofs, the court decreed the relief sought, except a reassignment of homestead was denied. Defendants appeal to this court, and assign various errors, and appellee assigns cross-errors that the court refused to set aside the assignment of homestead, and to reassign the same.

Whilst the bill is called a bill of review, from its form and scope it is in substance a bill to impeach a decree, or, rather, a sale under it, for fraud, and we shall consider it such.

Is there any fraud proved as alleged in the bill, to sustain the decree? We think not. There is no pretence that Bryan did not die intestate, seized of the real estate ordered to be sold to pay his debts. He was indebted at the time of his death, and the debts largely exceeded the personal assets of his estate. This required the county court to render the decree for the sale of the lands. The decree was therefore proper for the purposes for which it was filed. It can not be impeached for want of jurisdiction, because the county court had jurisdiction, both over the subject matter and the persons of the parties, except it could not order the sale of the portion of land set off to the widow for homestead. All understand that a decree can not be impeached or reviewed unless fraud, or error, at least, is shown. The county court had jurisdiction to order the assignment of dower and homestead, and the allegations in the petition, and the proofs, clearly showed the widow was entitled to both. Nor is there any allegation in this bill that there was any fraud in obtaining the decree, or that there was the slightest evidence then

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Opinion of the Court.

existing that is newly discovered, that will disprove a single fact necessary to sustain the decree. It then irresistibly fol. lows, that there is no ground for reviewing and reversing this portion of the decree, even if such a bill will lie.

The court undeniably had the jurisdiction and power to decree a sale of the eighty acres, subject to the mortgage. We are not aware that any court has ever held, since real estate has been subjected to sale under execution, that land subject to a mortgage, a life estate, or a remainder, may not be thus sold; and the 10th section of the statute in reference to judgments and decrees provides that the lands, tenements and real estate of the defendant may be sold under execution, and the 3d section defines the term “real estate” to include lands, tenements, hereditaments, and all legal and equitable rights and interests therein and thereto, etc. The 97th section of the chapter entitled "Administration of Estates,” authorizes the sale of the “real estate” of a deceased person to pay his debts where the personal assets are insufficient for the purpose. The 107th section authorizes the court to decree the sale of so much of the “real estate” as may be necessary to pay debts which can not be paid by the personal property. This is clearly broad enough to embrace the remainder after the termination of a life estate of a dowress. The manifest intention of the statute is, that when necessary, all of the real estate which was held by deceased, and every kind of interest therein, shall be subjected to sale for the payment of his debts. It may be that the uncertainty of the time when the estate will commence may depress the price, but no more so than the sale of the remainder after a life estate is spent, under an execution. In some cases the purchaser of the remainder may come into possession within a short period, and in others the period may be of great length; but this uncertainty is not a reason why creditors should not be paid their debts from the proceeds of such sales. It would be highly unjust to fail to subject such an estate or interest in

Opinion of the Court.

real estate to sale for the payment of debts, because it may be sacrificed, and leave the heirs owners of the remainder, and leave the creditors unpaid. Such an unjust purpose could never have actuated the legislature in providing for the sale of the real estate to pay debts of the estate. We can attribute no such purpose until it shall be so provided. There was therefore no error in decreeing the sale of the land assigned to the widow as dower, subject to that estate. To deny the power is to perpetrate a wrong and injustice on creditors that would be unjust and inequitable in a high degree. There is no error in law in that portion of the decree, as it conforms strictly to the law.

The bill, and the evidence under it, fail to disclose any ground for impeaching the decree for fraud in obtaining it. There was regular service, and sufficient legitimate proof to require its rendition. Nor is there the slightest fraud endeavored to be shown in anything that was done before it was rendered. There is therefore no pretence for impeaching it on that ground. It is true the bill charges that the administrator conducted the sale fraudulently, but no facts are specified as constituting fraud, nor do we regard the evidence as establishing fraud. Mrs. Bryan was the highest bidder for the land sold, subject to dower and homestead. It is true she did not count out the actual cash in paying for it, but she receipted for the amount of her bid, to be retained by the administrator out of her separate allowance which the estate owed to her. This operated to relieve the estate of so much debt, and was a full, fair and legal discharge of the estate of that amount of indebtedness, and we are wholly unable to perceive the slightest fraud in the transaction.

As to the eighty acres, it was apparently sold for the highest price that could be obtained. Williams bid, and the land was stricken off to him for $250, subject to a mortgage debt, taxes and interest, which, when paid, was $350. This was within $100 or $200 of the highest value placed on it,

Opinion of the Court.

and Henry Kenley paid $800 for it, which was, from the evidence, all it was worth.

The evidence signally fails to establish any kind of fraud or combination to depress the price, or to accomplish any purpose but to obtain the best price attainable. There is no witness who says he would have given more, or that it was worth more than the price for which it sold, subject to the incumbrances. Williams and the administrator both deny there was any arrangement in reference to the amount he bid, or that it was for any other person. After bidding it off he failed to take it, and Ogden being willing to take it at the bid, a deed was made to Williams, who conveyed to Ogden. This is not unusual, nor does it tend to prove a fraudulent combination. There had been a previous sale, when the eighty acres was struck off to a bidder at $150, subject to the mortgage, but he refused to go on with the purchase, because he alleged the land was too high. We fail to find any fraud, nor is there any proof that there was any sacrifice in the prices paid.

The evidence fails to show that the property subject to dower and homestead was first offered and sold en masse, but the evidence shows that it was offered in separate tracts, and not being sold, it was then offered and sold as a whole tract; but if it had been, that would have been ground of exception to the administrator's report, but is not ground for impeaching the sale years afterwards by a bill in chancery. The cases of Noyes v. True, 23 Ill. 503, Ross v. Mead, 5 Gilm. 171, Gillespie v. Smith, 29 Ill. 473, and Prather v. Hill, 36 id. 402, show that parties to obtain relief by bill to set aside sales of several tracts as a whole, must have objected on motion to set aside a sale, before the sale is confirmed. Here relief, if entitled to any, could have been had on exceptions to the administrator's report.

The evidence fails to establish that the property was sold at a great, if any, sacrifice. Nor has a case been made for a

Syllabus. Statement of the case.

reassignment of homestead, even if that may be done. If because the land assigned for homestead should rise in value, a new assignment should be had to reduce the quantity, it would seem that when it depreciates in value, for the same reason a new assignment should be had to increase the quantity.

The decree of the court below is reversed, and the cause remanded.

Decree reversed.

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1. LIEN-of judgment-not affected by an appeal. An appeal from a judgment of the circuit court to the Supreme Court does not affect the lien of the judgment, or its capacity to become a lien on real estate acquired by the judgment debtor pending the appeal.

2. EXECUTION-pending an appeal, not void, but voidable. The issuing of an execution on a judgment of the circuit court pending an appeal from the same, is irregular, but the execution is not void; and a sale of land under such execution is subject to be set aside on motion by the defendant, made in proper time, but by no one else; and if not so set aside, the sale will pass the defendant's title to the land.

3. SAME-who may have sale under, set aside. No one but the defendant in an execution can question a sale of his land under the same, for an irregularity. If he fails to have the same set aside, and acquiesces in the sale, no one acquiring a title from or through him can question the validity of the sale, especially in a collateral proceeding.

APPEAL from the Circuit Court of Massac county; the Hon. DAVID J. BAKER, Judge, presiding.

This was an action of ejectment, brought by the Metropolis and New Columbia Gravel Road Company, against Hamilton Shirk and Albert P. Oakes, for the north half of block 120, in the city of Metropolis, in Massac county.

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