no other bid being received, the master declared the same sold, and, believing appellant to be the representative of said complainant, remarked, "That will leave you a deficiency of about $5,800." Immediately upon such announcement of the master the appellant left the salesroom without depositing or offering to deposit any cash or making any arrangements for the payment of the same. The master, being under the impression that Slack represented the complainant, said nothing to him about the payment of cash; it being the custom and practice of masters in chancery in Cook county, when property is bid in at a sale in a foreclosure suit by the complainant (if such bid is not in excess of the amount due under the decree), to credit the amount of his bid upon the amount found due him in the decree, and when the property is bid in by one other than the complainant and the decree provides a sale for cash either to require the amount of the bid to be paid in cash as the property is struck off, or a substantial deposit made. As appellant and Wilson were leaving the salesroom, and just as they had stepped out from the door, they were met by Henry Horner, Jr., who was the solicitor for the complainant in the foreclosure proceedings, who, being unaware of what occurred in the salesroom, asked appellant and Wilson to return to said salesroom, as he, Horner, was going to bid in said property on behalf of the complainant. Appellant and Wilson refused to return. When Horner entered the salesroom, the master was still on the raised platform from which the property was offered for sale, making a notation regarding the sale. Horner immediately asked the master if he was ready to offer for sale the premises, and the master thereupon informed Horner that his (Horner's) representative had just been in and bid $3,000 at said sale. Horner replied that no one had represented him and asked the master who made the bid, and was then informed that the property was bid in the name of William Slack for $3,000. Horner then informed the master that appellant was the defendant's solicitor. The master then said to Horner that, acting under the impression that the appellant represented the complainant, he had not demanded any cash and none had been paid, and that the purported sale had been made under a misapprehension and mistake by himself as to the status of the bidder. The master, being informed by Horner that appellant and Wilson had just left the salesroom, asked Horner to go out and ask them to return, which he did, and on meeting them at appellant's office, which was only a short distance, informed appellant that the master had instructed him to say that the sale would not be made for the sum of $3,000 offered, on account of the misapprehension and because no cash had been paid, and informed them that the master would immediately proceed to receive higher and

better bids for said property, and asked appellant to return to the salesroom at once, as the proceedings were to be reopened. Appellant and Wilson refused to return to the salesroom, and Horner informed them there that he would return and bid the sum of $7,000 on behalf of complainant, and immediately returned to the salesroom, arriving there in about 15 minutes after 1 o'clock, and advised the master of the conversation between himself, the appellant, and Wilson. The master then announced publicly that no cash having been deposited and said purported sale having been opened and conducted under the misapprehension of the master, as aforesaid, and because of his haste in making the said alleged sale, the same would be reopened for higher and better bids, and called for other bids upon the property. Horner, on behalf of complainant, offered the sum of $7,000, and, being the highest and best bid received at that time, the premises were struck off to the complainant in said bill, the German Old People's Home, for said sum. Horner's reason, as stated by him, for not being present when the property was first offered for sale, was that the watch he carried showed the time to be 3 minutes of 1 o'clock when he reached the salesroom, the clock at said salesroom registering but a few minutes after 1. The master filed his report showing the facts and reporting the sale to the complainant, and in his report made a complete statement to the chancellor as to what transpired between all the parties at the sale. Appellant filed an intervening petition, praying that the sale of the premises to complainant be disaffirmed, and that the sale of the premises to himself be approved and confirmed. On the same day the master filed an answer to said petition, and the complainant in said cause also filed its answer to the intervening petition. Exceptions were filed by appellant to the master's report of sale, and upon a hearing on April 13, 1904, upon said petition and the sworn answers thereto, the exceptions of said Slack to said master's report, and the affidavits, the court found, in substance, that because of the misapprehension, mistake, and error involved in said sale all parties interested and prospective bidders did not have an equal and sufficient opportunity to bid, and also because no cash was paid or deposited upon said bid of appellant the bid of said appellant should not be accepted or considered, and that, if said sale had been held in such a manner as to give all intending bidders an opportunity to bid, the premises would have brought at least $7,000. It was therefore ordered by the chancellor that both the bid of the complainant in said cause, as well as that of the appellant, be rejected and a resale had. An order was entered dismissing the petition of Slack for want of equity, from which order a writ of error was sued out in the Appellate Court, and this is an appeal

RICKS, J. (after stating the facts). As will be seen from the above statement of facts, the sole question presented in this case was the right of the chancellor to set aside the sale made by the master and order another sale, or whether or not the appellant was entitled to the property under his bid. In our opinion the chancellor had the right to order the resale of the premises, or even to have accepted the sale as made by the master and reported to the court for the $7,000. The chancellor, in such proceedings, is charged with responsibility for the decrees and orders to be made in the case, and it is his duty to make investigations, and determine as to whether or not the sale as made by the master is regular, free from fraud or wrong, and to the best interest of all parties concerned. The master is a ministerial officer for the purpose of carrying into effect the decree of the court, and his acts are binding only when approved by the court. If the chancellor finds, upon the coming in of the report of a master, that the sale as made is not to the best interest of all concerned and is inequitable, or that any fraud or misconduct has been practiced upon the master or the court, or any irregularities in the proceedings, it is his duty to set aside the sale as made and order another sale of the premises. The chancellor has a broad discretion in passing upon the acts of the master and approving or disapproving his acts in reference to sales and entering its own decrees (Quigley v. Breckenridge, 180 Ill. 627, 54 N. E. 580), and his decree will not be disturbed by this court unless it is shown that he has abused his discretion and entered such an order or decree as would not seem equitable between the parties interested. Surely it cannot be said that the court has abused his discretion in his actions in this case in refusing to allow appellant to take the property in dispute, which is shown to have been sold under a misapprehension of fact and to be worth at least $8,000, for the sum of $3,000, when within 15 minutes the master was offered $7,000, or $4,000 more than the first bid. If appellant had wanted to act fairly in reference to the sale, he should have returned to the place of sale when sent for by the master and defended his actions.

No money was paid by appellant as provided for by the decree, and we think, under the conditions as here shown to exist, the master was justified in offering the premises for sale again. While it is true that mere Inadequacy of price will not always justify the setting aside of a sale, yet, where there is such a misunderstanding and inadequacy

of price as is shown to exist in this case, certainly it could not be said that the sale made to appellant was just and equitable as between all the parties interested. The master in his statement says that, if he had not been mistaken as to the identity of appellant, he would undoubtedly have compelled him to comply with the terms of the decree as to payments. As soon as he learned the identity of the purchaser and learned that he was not acting for or representing the complainant, he at once notified appellant that because of the mistake as to the person and appellant's failure to pay the purchase money or make a deposit he would resell the property. This was within his power. In Dills v. Jasper, 33 Ill. 262, in discussing a case much like the one at bar, it is said (page 273): “In this country the master usually requires the amount of the bid to be deposited with him at the time of its acceptance or immediately thereafter, and on failure to do so the master may reject the bid and may again expose the property for sale." The record further shows that the only person against whom the deficiency decree could operate is financially irresponsible, and that the debt could only be realized, if at all, by the sale of the property.

While under some conditions the misapprehension of the master as to the bidder may not make such a difference as would warrant a chancellor in setting aside the sale, yet under the conditions as we find in this record, the property being sold to the attorney for the party owning the equity of redemption when he in fact thought he was selling to the party complainant in the decree, who had no other remedy for obtaining his money except under the sale, and only realizing $3,000 out of $8,000 worth of property on over $8,000 of indebtedness, the irregularities as shown warranted the chancellor in setting aside the sale, and there was no abuse of the discretion of the court.

The judgment of the Appellate Court will accordingly be affirmed. Judgment affirmed.

(219 Ill. 146)

HIGGINS et al. v. HIGGINS.

(Supreme Court of Illinois. Dec. 20, 1905.) 1. EXECUTORS AND ADMINISTRATORS-DOWER HOMESTEAD PROCEEDINGS FOR ASSIGNMENT-PARTIES.

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person whom he might marry of her marital rights.

[Ed. Note. For cases in point, see vol. 17, Cent. Dig. Dower, § 15.]

3. SAME-VOLUNTARY CONVEYANCES-FRAUDULENT INTENT-PARTICIPATION BY GRANTEE.

Where a conveyance to defraud a future wife of the grantor of her marital rights is purely voluntary, it is not necessary that the grantee shall participate in the fraudulent intent of the grantor in order that the conveyance may be set aside.

[Ed. Note. For cases in point, see vol. 17, Cent. Dig. Dower, § 15; vol. 24, Cent. Dig. Fraudulent Conveyances, § 520.]

4. SAME-SUITS TO SET ASIDE CONVEYANCESLACHES.

Where a man makes a voluntary conveyance to defraud any woman whom he might marry of her marital rights, the woman whom he actually does marry may, as soon as she learns the facts, and although her husband is still living, bring suit to set the conveyance aside; and if she delays too long after she has discovered the material facts she will lose her right to relief.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Dower, § 15.]

5. EQUITY-PLEADING-VARIANCE.

Relief cannot be granted upon a state of facts disclosed by the evidence, but not alleged in the bill, in the absence of an amendment of the bill so as to make it conform to the facts proven.

Appeal from Circuit Court, Livingston County; G. W. Patton, Judge.

Suit by Johanna Higgins against William Higgins and others. From a decree in favor of complainant, defendants appeal. Reversed.

A. C. Norton and R. B. Campbell, for appellants. E. A. Simmons and R. S. McIlduff, for appellee.

CARTWRIGHT, C. J. The appellee, Johanna Higgins, was the second wife of John Higgins, and was married to him on May 17, 1887. She filed her bill in this case in the circuit court of Livingston county on March 19, 1903, for the purpose of setting aside a deed of 80 acres of land made by her husband, dated May 2, 1887, and recorded July 23, 1887, alleging that the deed was not in fact made and delivered until after her marriage, and was without consideration and in fraud of her marital rights. John Higgins and the grantees in the deed, with the husbands and wives of such of the children as were married, were defendants. The husband, John Higgins, was defaulted, and the other defendants, except Margaret Higgins, a daughter, answered, alleging that the deed was made, acknowledged, and delivered on the day it was dated, and denying that it was executed to defraud the complainant of her marital rights. A replication having been filed, the cause was referred to a master in chancery to take and report the evidence and his conclusions. Before the master reported John Higgins died, and his death was suggested, and leave was given to make his personal representative a defendant. A supplemental bill was filed on July 15, 1905, in which the death of John Higgins was alleged, and complainant claimed homestead and

dower in the land and prayed that the same might be assigned and set off to her. The personal representative was not made a defendant, and counsel say that the complainant is herself the administratrix; but the personal representative was not a necessary party, since the dower and homestead are not subject to any rights of the administrator. Counsel for appellants say that the supplemental bill was not answered by Margaret Higgins, but the abstract filed by them shows that the bill was answered by all the defendants and that a replication to the answer was filed. The master reported that the deed was executed and delivered prior to the marriage and prior to the acquaintance of John Higgins with complainant, and he recommended the dismissal of the bill. Objections

to the report were filed by the complainant, which were afterward heard as exceptions, and a decree was entered setting aside the deed as against complainant. The court found by the decree that the deed was executed at the time it bore date, prior to the marriage, but that it was executed without consideration and in contemplation of marriage with the complainant, and that it was executed and delivered for the fraudulent purpose of defrauding her of her marital rights. It was ordered that homestead and dower be as

signed to her, and commissioners were appointed for that purpose. The defendants appealed from the decree.

The facts proved were in substance as follows: John Higgins was a widower with six children and owned a farm of 80 acres near Pontiac, which he occupied as a homestead with his children, except his son Patrick, who lived at Flanagan, about 14 miles distant, where he kept a harness shop. On May 2, 1887, John Higgins made and acknowledged the deed in question, conveying the land to his children and reserving to himself a life estate. He showed the deed to the children who were at home and told them that he was going to Ireland; that he wanted to have things straightened up, so that in case anything should happen to him there would be nothing to worry him, and that Pat could take care of the deed. Shortly afterward he went to Flanagan and gave the deed to his son Patrick, saying that he wanted the son to take care of it and in case anything should happen to him it would protect the interest of the children in the property. He also said that he was going east and might go to Ireland. In fact, he contemplated going to New York to buy a piece of land, and he did not intend to go to Ireland. Patrick took the deed and put it in his safe and paid no further attention to it. John Higgins went to New York and from there went to Lowell, Mass., to visit a sister of his first wife, whom he had never seen. When he arrived at Lowell he found that she lived at Chicopee Falls, Mass., and went there. He was introduced to complainant by his sister-in-law, and within two days there

after married her. He was near 60 years old, and she was about 23 and was living with her parents. He told her that he owned 160 acres of land and owned personal property and a good home. She accepted his proposal of marriage on account of his representations and for the purpose of bettering her condition. He had owned the 80 acres, but if the deed had been made and delivered his representation was false even as to that. He only stayed at Chicopee Falls a very short time, and immediately after the marriage he and complainant came to the farm near Pontiac. About six months afterwards, difficulties having arisen between her and the children, she was informed of the deed. A daughter with whom she had had some words had gone to Flanagan, and at the suggestion of the daughter the deed had been put on record. The complainant claimed that she had been defrauded of her rights and went back to Chicopee Falls to her father and mother. The husband also left the farm and went to Toledo, but after an absence of about 21⁄2 years complainant came back at his solicitation and on his representations that the deed was wrong and that he would have things changed and do right by her. Thereafter they lived on the farm, and it was farmed by the son William, one of the appellants, as a tenant. Four children were born to the complainant and her husband, and he seems then to have realized the injustice of his arrangement and wanted to make some arrangement so that his young children would not be left entirely destitute. He told complainant that the deed was made after he was married and dated back, and promised to take some proceedings to have it set aside. He evidently felt differently about the condition of things when he saw the four little children of his second marriage entirely unprovided for, while the grown-up children of the first marriage were to take all. He consulted an attorney with a view to having the deed set aside, but nothing was done, and complainant filed the bill, alleging, in accordance with his representations to her, that the deed was made after the marriage.

. Appellee has assigned cross-errors on the finding of the court that the deed was made prior to the marriage. The testimony of the grantor, John Higgins, tended to prove that the deed was made after the marriage, but his recollection was very indistinct and his testimony appears quite unreliable. The evidence proves that the deed was made and acknowledged on the day of its date and was given to Patrick Higgins a few days afterward. There is more probability that the deed was only given to Patrick to hold in case anything should happen to the grantor on his journey. Nothing was said about putting it on record, and Patrick did not treat it as he would have treated an ordinary conveyance, by recording it. He put it in his safe and gave it no further attention until his sister came to him to have it re

We

corded. On the other hand, the fact that a life estate was reserved to the grantor would not be consistent with the theory that the deed was only to be effective in case of his death by accident while on his journey. think the record sustains the findings as to the execution and delivery of the deed. The evidence justified the conclusion that, although John Higgins had never met the complainant, he contemplated a second marriage at that time, and the deed was made with a view to that event. The most reasonable explanation of his conduct when he went to Chicopee Falls is that his visit to his sisterin-law was in view of marriage. She introduced him to the complainant, whom he immediately solicited in marriage, with the representations already mentioned as to his property. The marriage took place within two days, and there is no reason to suppose that it was a case of a sudden attachment. The statement to the children that he was going to Ireland appears to have been untrue, and the explanation that he made the deed so that if anything should happen to him it would protect the interest of the children in the property does not look reasonable, in view of the fact that the deed made precisely the same disposition of the property that the law would have made if anything had happened to him. The reservation of the life estate could only have been inserted in the deed with the expectation that he would live to enjoy it, and there was no occasion whatever for making the deed giving the property to his children just as the law would have done, if it was made in view of some casualty to him on his journey. The conclusion drawn by the court is the only one that will fit with all the circumstances. The conveyance was voluntary and without consideration, and, if the intention was to defraud of her marital rights any person whom he should marry, it makes no difference that he had not yet selected the complainant as his spouse. There must be a fraudulent intent, but it need not necessarily be directed against a particular person. With respect to her marital rights the law affords the same protection to a wife as to a creditor, and a voluntary disposition of property made with the specific intent to defraud future creditors is void. Morrill v. Kilner, 113 Ill. 318. An intent to defraud by the conveyance of property may be ascertained by inference from the circumstances. Hughes v. Noyes, 171 Ill. 575, 49 N. E. 703. The wife is within the protection of the statute against conveyances made with intent to defraud, and if the conveyance is purely voluntary it is not necessary that the grantee shall participate in the intent of the grantor. It is as much a fraud for a man, on the eve of his marriage, unknown to his wife, to make a voluntary conveyance of property to defeat the interests which she would acquire in the property by virtue of her marriage, as it is for a debtor who contemplates contracting a debt to voluntarily dispose of

his property in order to defeat the interest of future creditors. 14 Am. & Eng. Ency. of Law (2d Ed.) 252. We cannot say that the court was wrong in the conclusions of fact contained in the decree.

It is further contended that the complainant was barred by her own laches from obtaining relief. The circumstances were somewhat peculiar. When she first learned that the deed had been made it does not appear that she was aware of the facts which would enable her to have it set aside or of her rights in relation to it. When she came back it was upon representations of her husband that the record was wrong and he would have it corrected and do right by her. They were in possession of the property, and she was apparently resting in the belief that he would in some way fulfill his promises to her. When she obtained any further information from her husband it was to the effect that the deed had been executed after the marriage, and as she did not join in it it would be no bar to her right of dower or homestead if she should outlive her husband. Whenever

she learned the facts in the case she had a right to institute a suit at once to set aside the conveyance as being in fraud of her marital rights. Although a wife cannot assert an inchoate right of dower in the lifetime of her husband and is not guilty of laches in failing to do so, she may set aside a deed executed in fraud of her marital rights. Freeman v. Hartman, 45 Ill. 57, 92 Am. Dec. 193; Lohmeyer v. Durbin, 213 Ill. 498, 72 N. E. 1118. She might therefore lose her right to relief by long delay in bringing suit after she knew the material facts, but we cannot say in this case that she was barred by laches.

The tenant, William Higgins, built a house for himself on the premises, but that was not to be taken into account in the assignment of dower. Patrick sold his interest to William, and William loaned $500 to one of his sisters and took a mortgage on her interest in the property to secure the loan. These transactions were between the grantees in the deed, and as William lived on the place it is a fair inference that he knew of the claims made by the complainant and his father with respect to the deed. So far as the mortgage is concerned, there is nothing to show that the interest of the mortgagor will not be sufficient to secure the debt after homestead and dower shall be assigned.

The decree, however, must be reversed, for the reason that the bill does not contain allegations of the facts upon which the relief was granted. It is a primary rule, always enforced and sustained by numberless decisions, that the allegations of the bill, the proof, and the decree must correspond; that facts disclosed by the evidence which would warrant relief will not sustain a decree where the facts are not alleged in the bill. Dorn v. Geuder, 171 Ill. 362, 49 N. E. 492. The bill in this case was framed upon the

theory that the deed was executed after the marriage and dated back prior to the mar riage for the purpose of defrauding the complainant. It contained no allegation that it was executed on the eve of the marriage with a fraudulent intent to defraud the future wife. In such a case the court will permit the complainant to amend the bill so as to correspond with the proofs; but the bill was not amended, and the court by the decree found a different state of facts from those stated in the bill. The decree must be reversed, but, inasmuch as the reversal is not upon the merits, the parties will pay their own costs of the appeal.

The decree is reversed and the cause is remanded, with leave to the appellee to amend her bill to correspond with the proofs, and if such amendment is made the circuit court is directed to re-enter the decree heretofore entered, and the parties will pay their own costs in this court. Reversed and remanded.

(219 III. 40)

OLSEN, County Clerk, v. PEOPLE ex rel. BUENGER et al.

(Supreme Court of Illinois. Dec. 20, 1905.) 1. STATUTES-AMENDMENTS-TITLE OF AMENDED ACT.

Laws 1905, p. 194, providing that a person who has been formerly married and has been granted a divorce on the ground of extreme cruelty, or desertion and abandonment on the part of his or her spouse, shall not marry again within one year from the time the decree of divorce has been granted, is not, because it is an amendment of Act July 1, 1874 (Hurd's Rev. St. 1903, c. 89), entitled "An act to revise the law in relation to divorce," subject to the objection of not being within the title of the act which it purports to amend.

2. DIVORCE-EFFECT OF DECREE-REMARRIAGE OF DIVORCED PERSONS-STATUTORY PROVI SIONS.

Laws 1905, p. 194, providing that a person who has been formerly married and has been granted a divorce on the ground that his or her spouse has been guilty of extreme cruelty, or desertion and abandonment, shall not marry again within one year from the time the decree for divorce was granted, and Laws 1905, p. 317, amending Hurd's Rev. St. 1903, c. 89. prohibiting the county clerk, under penalties therein specified, from issuing a license for the marriage of a person who is legally incapable of contracting marriage, are not subject to any constitutional objection. 3. SAME.

Such acts apply to all persons coming within their terms, although they were divorced before the act took effect.

4. MARRIAGE-ISSUANCE OF LICENSE-DUTIES OF CLERK-INQUIRIES.

Laws 1905, p. 317, amending Hurd's Rev. St. 1903, c. 89, prohibits the county clerk, under penalties therein specified, from issuing a license for the marriage of a person legally incapable of contracting a marriage. Laws 1905, p. 317, prohibits in certain cases the remarriage of divorced persons within one year from the granting of the decree of divorce. Held, that it is the duty of the county clerk in issuing a marriage license to make inquiries, so as to find out whether the applicants for the license are incompetent to marry under the divorce act.