source: Caselaw Access Project

author: Opinion by Treat, C. J.:

license: Public Domain

text:
    Charles Choteau, appellant, vs. George W. Jones et al., appellees.

      Appeal from Jersey.

    Held that a description of lands in a deed, such as u two entire sections of land in the Ma-3'ine Settlement, and state of Illinois, and patented to the said John Hice Jones/'’ the grani- or, was sufficiently definite and certain, as the locality was well known, and upon examination of the proper records, it could be ascertained which two sections of land had been patented by the grantor; but if it should appear by the records, that more than two sections had been entered, or that no lands in that settlement had been entered by the grantor, then the description would be void.
    A deed, clearly appearing on its face to be a voluntary conveyance, although good between the parties, is fraudulent and void as against pre-existing creditors of the grantor,
    The relation of debtor and creditor between principal and surety, so as to entitle the surety to avoid a voluntary conveyance, made by his principal, commences at the date of the obligation by which the surety becomes bound, and not from the time he makes payment.
    The law of 1819 did not confer upon a notary public authority to take and certify the ac~ knowlcdgmcnt or proof of a deed.
    An administrator cannot avoid a voluntary deed of his intestate, nor can he take advantage of a fraudulent conveyance made by his intestate. But where A executed and delivered to his two sons, B and 0, a voluntary deed of lands, himself being indebted at the time, which deed was not recorded so as tv be notice to creditors and bona fide purchasers, and afterwards, on the death of A, his administrator, who held the title papers to said lamí, and the public records showing that A died seized of the premises, applied to the Circuit Court for an order to sell said lands, in accordance with the statute, which order was granted, and the said lands were sold under said order—the said B and C having been made parties to said suit, and interposed no defence or claim to said lands: Held that creditors and purchasers had the right to conclude, and to act on the conclusion, that the said lands belonged to tho intestate at the time of his death, and tliatB and C had no other interest therein than as heirs at law of their father; that the purchasers at such sale of the administrator succeeded to all of the rights of the creditor, in fraud of whom the voluntary conveyance was mado; and that they are entitled to the benefit of the statute of frauds equally as the creditor It i mself.

      A purchaser at a tax sale o f land, in which he has an interest as heir, acquires no additional title.
    A pavty, who claims title to land, which is listed for taxation in his name, acquires no greater interest by permitting it to be sold for taxes, and purchasing it himself.

      The doctrine is now well settled that a bona fide purchaser, for a valuable consideration, and without notice, either from a fraudulent grantor or grantee, shall be protected.
    Our statutes relative to the recording of deeds, &c., applies equally to administrators'" deeds as to other conveyances ,* and where, as in this case, the contest is between a purchaser succeeding to the rights of the creditors of the fraudulent grantor and bona fide purchasers from the fraudulent grantees, the parties are equally meritorious and innocent, but the law wisely favors tlio most vigilant, and he who first places his title on record must prevail.
    This is a bill in chancery, filed in the Madison Circuit Court on the 7th March, 1844, to set aside and cancel a certain deed of conveyance of two sections of land, situate in that county, of the date of January 31, 1824, from John Rice Jones to his sons, George W. Jones and William P. Jones.
    The hill sets forth that, on 10th November, 1821, John Rice Jones, administrator of one Thomas Brady, deceased, executed his bond to the Governor of Missouri, being an administration bond, for the faithful administration of the estate of Brady; and that one Pierre Choteau was his security on the bond. That on the first day of February, 1824, the said John Rice Jones departed this life intestate, leaving numerous heirs, who are named and made parties defendants to the bill. That on the 10th November, 1825, the said Governor, suing for use of D. B. Hill and Absalom Keese, in the Circuit Court of St. Louis, sued on the bond of said Pierre Choteau, as the security of said John Rice Jones, deceased, for breaches of the condition by him in his lifetime; and at the November term, 1826, recovered judgment for $ 6,000, the penalty, with costs, &c., upon which judgment execution was awarded for 0 3,032 08, the damages occasioned by the breaches ; which judgment was, at the November term, 1827, on appeal to the Supreme Court, affirmed, but was afterwards enjoined, except $ 1,928, part thereof, and interest thereon, to $ 118 89, and service and commission to $ 23 36 ; also costs of suit to $ 40—amounting in all to $2,110 283 ; and this sum was collected from the said Pierre Choteau. That George W. Jones, one of the defendants, and son of the said John Rice Jones, on 3d March, 1826, in Randolph county, Illinois, administered on the estate of the said deceased; and that, at the August term of the Randolph Circuit Court, 1829, the said Pierre Choteau commenced suit against the said George W. Jones, as administrator of the said John Rice Jones, deceased, and at the August term, 1830, recovered judgment in that suit for $ 2,402 20.

      This judgment, so recovered as aforesaid, was for the amount of money paid by Pierre Choteau as the security for John Rice Jones, deceased, and the interest thereon—and said George W. Jones had full notice of this fact, &c. The letters of administration granted to George W. Jones, were revoked on 3d December, 1832, and on the 8th of July, 1844, Harvey Clendinnin, the public administrator for Randolph county, was appointed administrator of John Rice Jones, deceased, and the personal estate was insufficient to pay the claims against the estate ; and the said Pierre Choteau was a creditor of the estate, and his claim filed against the estate, being balance of his original claim, amounted to $ 1,370 85, with interest thereon from 13th January, 1830. That the personal estate of the said John Rice Jones being insufficient to pay the debts against the estate, the administrator, Harvey Clendinnin, applied to the Circuit Court, at the April term, 1835, and obtained an order to sell the lands mentioned in his petition, among which are sections fourteen and twenty-three, township four north, range seven west, in Madison county, for the payment of the debts of deceased.
    Said John Rice Jones was the patentee of said lands, and had before his death acquired a complete legal title in fee simple ; and the administrator, Clendinnin, in pursuance of said order, and after due notice given, on the 3d day of August, 1835, at Kaskaskia, sold those lands at public auction, and Pierre Menard, jr. bid the highest price for section fourteen, township four north, range seven west, to wit, $ 800; and it was struck off to him; and the said Harvey Clendinnin, as administrator, on the 4th of August, 1835, made and delivered to him a deed for last named tract of land. And at the time, place, and manner aforesaid, the said Harvey Clendinnin sold to complainant said section twenty-three, township four, range seven west, for the sum of $ 800, and made and delivered to him a deed therefor on the 4th August, 1835. That, on 22d day of December, 1840, the said Pierre Menard, jr., and Caroline, his wife, conveyed to complainant said section fourteen; so that complainant is the sole owner of said two sections of land in Madison county.
    The said John Rice Jones being indebted to the Governor of Missouri as aforesaid, shortly before he died, to wit, on the 31st of January, 1824, made a certain deed to his son, George W. Jones, one of the defendants, and William P. Jones, in consideration, as is stated in said deed, of love and affection, and without any valuable consideration, conveying to his said sons several tracts of land, and amongst others, two tracts of land, described as “two entire sections of land in the Marine Settlement;” adding no other or further description thereto.
    The said George W. Jones and William P. Jones have claimed the two sections, which are fully described in the deeds through which complainant derives title, by the deed made by John Rice Jones, wherein two sections in the Maxine Settlement are attempted to be conveyed to them; and the said John Rice Jones made said conveyance for the purpose of defeating the claims of his creditors, and without valuable consideration; and the said George W. Jones and William P. Jones had notice thereof, and knew that John Rice Jones was the administrator of the estate of the said Thomas Brady, and had executed his bond for the faithful administration of said estate to the Governor of Missouri, for the use of such pei’sons as were interested in the settlement of said estate; and the said George W. Jones had full knowledge, soon after his father’s death, that suit had been commenced on said administration bond against Pierre Choteau, one of his securities, and that judgment had been obtained; and also, that Pierre Choteau had paid said judgment; that he had notice of the suit instituted against him as administrator of his father’s estate by said Choteau, and was a party to the judgment obtained in the Randolph Circuit Court, and knew the other legal claims against the estate of his father; and had notice of the application of Harvey Clendinnin, the administrator, for the sale of the various tracts of land alleged to be his father’s, or subject to the payment of his debts, including the said sections fourteen and twenty-three, and of the order of Court made in pursuance thereof, and of the subsequent sale to Pierre Menard and complainant. But the said defendant, Jones, contimied to claim the lands purchased by complainant, and exercised acts of ownership over the same ; and that, in order to obtain a, less questionable title to the land of which or that part of which he claimed to be the owner, he fraudulently suffered the same to be sold for taxes due for 1832, and did buy them in at the tax sale, and obtained deeds for the same, (de,scribing them,) from the Auditor of the state of Illinois, all bearing date 25th February, 1833, thereby intending to defeat the just claims of the creditors of the said John Rice Jones, and to convert the land, which ought to have been made the fund to satisfy the debts against the estate, into lands of his own, and put it beyond the reach of the creditors of the same.
    After the obtaining by said Clendinnin of said order of sale, and after the making of the sale of the said sections fourteen and twenty-three, and the execution of deeds therefor, to the said Pierre Menard, jr., and complainant, the said George W. Jones conveyed, or attempted to convey away, portions of said sections of land, as follows : (naming the persons, being defendants to the bill, and the several portions of said sections to them conveyed respectively, and the dates of the several and respective conveyances to them.) All which conveyances were made fraudulently, and for the purpose of defeating the creditors of the estate of said John Rice Jones, and after he had full notice of the proceedings in the Randolph Circuit Court, and of the sale of said lands by the said Harvey Clendinnin, administrator as aforesaid, under the order of said Court; also, the subsequent purchasers had legal notice of all these facts. And the said George W. Jones still claims to be owner of south half of south east fourteen, and the east half of section twenty-three.
    The bill concludes with a prayer for specific as also for general relief.
    George W. Jones, in his answer, admits it may be true that his father, John R. Jones, together with Pierre Choteau, entered into administration bond on the estate of Thomas Brady, deceased, to Governor of Missouri, 10th November, 1821; the death of John Rice Jones, intestate, on 31st January, 1824, and that his heirs now living are John Rice Jones, Myers F. Jones, Augustus Jones, Maria Jones, and this defendant, George W. Jones; and his heirs, who have departed this life, leaving issue, as set forth in the bill, are Harriet Jones, afterwards Harriet Scott, Eliza Jones, afterwards Eliza Scott, and William P. Jones ; that it may be true that Pierre Choteau was sued on said bond and judgment obtained, and submits same on such proof and exhibits as plaintiff may adduce.
    Defendant believes the administrators of John Rice Jones, i. e. self and Augustus Jones, had sufficient and now have sufficient assets to pajr off his debts in Missouri; defendant administered on the estate of his father in Randolph county, Illinois, and Pierre Choteau, at August term, 1829, of Randolph Circuit Court, Illinois, commenced suit against defendant for the recovery of moneys alleged to be due from his late father, and recovered a judgment for $ 2,402 20, and costs of suit. Denies all knowledge that the judgment recovered against him as adminisr trator of John Rice Jones, in the Randolph Circuit Court, by Pierre Choteau, was for money paid by said Pierre, as the security of John Rice Jones, deceased; and denies all personal notice that said Pierre Choteau was at any time security for the said John Rice Jones, or that he, ,as such security, had any money to pay for John Rice Jones, deceased; also, all knowledge of the appointment of Harvey Clendinnin, to be administrator of John Rice Jones, or that any Court had ordered a sale of the lands in controversy; and that John Rice Jones, at the time of his death, or his representatives since, had title to sections fourteen and twenty-three. Denies that Clendinnin, as administrator of John Rice Jones, deceased, had any right to dispose of sections fourteen and twenty-three, to pay his debts. Has paid in taxes and redemption money for sections fourteen and twenty-three, out of his private funds, sufficient, when consolidated, to pay for them at low price—and that what he has paid in taxes, and what he has advanced to his brother, William P. Jones, in cash and payment of debts due by him, together with a fair compensation for loss of time in attending to same, when consolidated, would pay for sections fourteen and twenty-three, at their present value. Knows nothing of conveyance from Pierre Menard, jr. to complainant, but insists that a deed from P. M., jr. and wife, could not vest a title in complainant. Denies that John Rice Jones was indebted to the Governor of Missouri on his administration bond, about the estate of Brady, but not that a recovery may have been had after his death against his security. On 31st January, 1824, John Rice Jones, in consideration, as well of love and affection as of the sum of $ 1, conveyed to this defendant, and his brother, William P. Jones, two entire sections of land in the Marine Settlement, in Illinois, thereby intending to convey sections fourteen and twenty-three, in township four north, of range seven west, in Madison county; the said sections being the only ones owned or claimed by John Rice Jones in the Marine Settlement, in the state of Illinois, Madison county; and the Marine Settlement being well known, and the only one then. or since bearing that name, or lying in Madison county, and state of Illinois. Which said deed and acknowledgment are as follows :
    “ This indenture, made this thirty-first day of January, 1824, between John Rice Jones, of the one part, and George W. Jones and William P. Jones, of the other part, witnesseth: that the said John Rice, in consideration of the love and affection he bears his sons, the said George W. Jones and William P. Jones, and for the further consideration of one dollar, in hand paid, doth hereby grant, give and convey unto the said George W. and William P., two entire sections of land, lying and situate in the Marine Settlement, and state of Illinois ; also, the north-east quarter section twenty-three, north-west quarter section twenty-four, south-east quarter section eleven, north-west quarter section twenty-four, north-east quarter section thirty-four, southwest quarter section thirty-one, north-east quarter section thirty-one, in township eight south, range five, situate in the state of Illinois ; also, the south-east quarter section thirty, township nine, north-west quarter section three, township ten, range three west, and the fractional section nine, township nine, range five west; all situated in the state of Illinois, and patented to the said John Rice Jones : to have and to hold the said several tracts or parcels of land above described to the said George W. and William P. Jones, their heirs and assigns, forever. In witness whereof, he, the said John Rice Jones, has hereunto subscribed his hand and affixed his seal, the day and year first above mentioned.
    “John Rice Jones, (seal.)
    “ Sealed, signed and delivered, in presence of B. G. Farrar,

      D. V. Walker,

      G. F. Strother.

    “ Personally appeared before me, the undersigned, notary public for the county of St. Louis, and state aforesaid, duly commissioned and sworn, residing at the city of St. Louis, George F. Strother and B. G. Farrar, subscribing witnesses to the foregoing instrument, who severally acknowledged that the said John Rice Jones signed his name to the above in their presence, and further acknowledged the same to be his act and deed, for the uses and purposes therein expressed. In testimony whereof, I have hereunto set my hand and affixed my notarial seal, this 8th day of June, 1824.
    “D. G. Auglee, N. P. (seal.5’)
    In the month of May, June or July, 1834, William P. Jones died intestate, leaving no issue, and defendant had been, since the conveyance of the said John Rice Jones, to the time of the death of the said William P. Jones, the agent of the said William P. Jones, in and about the premises in the Marine Settlement; and he had, of his own means, advanced large sums of money to the said William P. Jones, in his his life-time ; and after his death, had paid off, out of his own funds, several debts contracted by said William, in consideration whereof the other heirs of the said William P. Jones surrendered to defendant their claims to his estate, and the right of this defendant thereto was fully recognized by the other heirs, and he paid a full consideration to his brother, William P. Jones, for his interest in those sections.
    Defendant, and his brother, William P. Jones, claimed, in fee, all of sections fourteen and twenty-three. The deed from John Rice Jones, of 31st January, 1824, to defendant and his brother, William P. Jones, was made in good faith, &c., and with the full conviction that he left more property clear than sufficient to meet all his liabilities; and that at the time of the execution of the deed, the estate of the said John Rice Jones was more than enough fully to pay all his just debts and legal liabilities, and in addition, to pay off any claim that the said Pierre Choteau could establish against his estate; and defendant is informed that there Is now in Missouri, in the hands of the. administrator there, sufficient assets to pay all demands that can be established, without the sale of any lands in the state of Illinois. He never had notice of the suit on the bond made by John Rice Jones, as the administrator of Thomas Brady, or that John Rice Jones had ever administered upon his estate, or that Pierre Choteau had ever paid any money whatever, as the security of the said Jones, for any cause. Admits he was party to the action brought by Pierre Choteau against the estate of John Rice Jones, in Randolph Circuit Court; and while defendant was administrator, no claim was presented for settlement, against said estate, except that of Pierre Choteau. Defendant has had no personal notice of the appointment of the said Harvey Clendinnin, as administrator of the estate of the said John Rice Jones, deceased, or of any sales made by him. Admits he did, on the 25th February, 1833, procure a tax title to sections fourteen and twenty-three ; but denies that he committed fraud thereby, or that he doubted the title he had procured from his father, and wished the same strengthened, or feared the claim of the complainant, but, simply, because his tax agent advised him so to do, to cut off an older tax title that had been, or was about to be, procured by others. Admits he did, as charged in the bill, sell the portions of said sections fourteen and twenty-three. He now owns the south half of the south-east quarter of section fourteen, and the east half of section twenty-three, township four north, range seven west, in Madison county, and state of Illinois. Denies that he had any personal notice of the doings of H. Clendinnin, as the administrator de bonis non- of the estate of John Rice Jones, deceased, although he might have been constructively notified of the fact.
    B. C. Stanton, Mathew C. Garey, S. Carrollton, Jesse Bartlett, O. S. Balster, D. Ground and Thomas Ray, have also filed their separate and several answers, as follows, to wit: Mathew C. Garey, S. Carrollton, Jesse Bartlett and Thomas Ray, have severally pleaded that they are innocent purchasers, without notice, of portions of said lands, from said George W. Jones ; and accompanied their respective pleas with answers generally denying allfraud, &c. B. C. Stanton, O. S. Balster and D. Ground, filed their separate answers, setting forth that they are, severally, innocent purchasers of portions of the land, without notice, from George W. Jones, and stating their ignorance of most of the main facts set forth in the bill. To these several pleas, answers, &c., the complainant filed a general replication.
    The bill was taken for confessed against the other defendants, on their failure to file answers.
    The case was taken to the Jersey Circuit Court, and, on the final hearing, all the important allegations of the bill, not admitted by the answers of the defendants or the agreements of counsel, were proved by certified copies of deeds, records and documents made part of the record in this case. It was also clearly shown by a certified copy of the records of the County Court of Washington county, in the state of Missouri, containing the inventories, sale-bills and reports made by Myers F. Jones and Augustus Jones, the administrators of the estate of John Rice Jones, deceased, in that state, including the sale of lands, and of the proceedings in the administration, that the estate of said deceased there existing is insolvent, though the defendants attempted to prove otherwise by several witnesses, by their opinions, &c., to the contrary. The defendants named as the purchasers of parts of the lands from George W. Jones, proved their several purchases, as set forth in their respective answers ; and Stanton and Ray proved their purchases of Garey, and Garey and Balster also proved their several purchases from Anderson, as set forth in their respective answers—and the payment of the purchase money—and that they severally paid fair prices for the lands. The value of certain lands in Randolph county, sold under the order of the Circuit Court, was also-proved by the defendants.
    Upon the hearing of the case, Lockwood, Justice, dismissed the bill, and ordered that each party pay his own costs; from which decision the complainant has appealed to this Court, and insists on a reversal of the decree, in the Court below, and the entry of a decree in his favor on the case made by the bill, answers, exhibits, proofs and evidence embodied in the record.
    David J. Baker, for appellant:
    1. The decree, or license, for the sale of the lands in controversy, has been duly made by a Court having general and exclusive jurisdiction in the case; and the questions of fact, which the Court must necessarily have decided in making the decree, are res judicatse, and cannot be again raised on the present occasion; and it was not competent for the Court to inquire whether or not there was property of John Rice Jones, deceased, in other states or countries, wherewith his debts might have been paid. As the Court has found that there was a deficiency of personal assets, and that a sale of these lands was necessary to pay the debts of the deceased, and as no fraud is shown on the part of Harvey Clendinnin, the administrator, either in obtaining the decree or in the making the sale under it, the necessity of ordering the sale cannot be inquired into in this case. The general principle is, that a judgment at law, or a decree in chancery, is conclusive of all the facts which must necessarily have arisen in the controversy. 1 Johns. C. R., 543; 4 Scammon, 364; 3 Gilman, 626 ; 6 Wheaton, 109. The principle, that the judgment or decree of a Court possessing competent jurisdiction, shall he final as to the subject matter thereby determined, is conceded by all, and can admit of no doubt; the principle, however, extends farther: it is not only final as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have decided. Le Guen vs. Gouverneur & Kemble, 1 Johns. Cases, 436, and cases there cited. A surrogate order of sale in New York, of real estate for the payment of debts, cannot, ordinarily, be impeached collaterally, even for fraud. 20 Wend. R., 241. If G. W. and W. P. Jones were aggrieved by the order or decree, they should have taken an appeal. Statutes 1833; “Wills,” &c., 104; 12 Wend., 533; Jackson ex dem. McFail vs. Crawford.
    2. The purchasers of these lands, and the complainant, are strangers, and had no agency in obtaining the order of sale , and as no fraud is brought home to them, or notice of any, they cannot be injuriously affected by the condition of the estate of John Rice Jones, deceased : they were not bound to look beyond the order of sale by the Court. The principle is, that a purchaser of land, under a decree of Court granting a license to sell, is not bound to look beyond the decree. Grignon’s Lessee vs. Aston, 2 How. U. S., 319; 5 Blackf., 328; 2 Peters, 169; 11 Mass., 227 ; Coleman vs. McKinney, 3 J. J. Marsh., 248; 7 Mass., 292; Leverett vs. Harris.
    3. The deed from John Rice Jones to his sons, George W. Jones and William P. Jones, is a fraudulent conveyance, and therefore absolutely null and void, ab initio, as to pre-existing creditors. The principle laid down is, that a voluntary conveyance, when the grantor is indebted at the time of its execution, is fraudulent; and that all fraudulent conveyances are void as to those whom they were intended to defraud. 1 Fonb., B. 1, ch. 4, sec. 12; Story’s Eq. Juris., secs. 352, 382 ; Revised Statutes 1833; Newland on Con., ch. 23, pp. 383, 387 ; 2 Kent, 440, and following; 2 Black., 296, and note. A conveyance is fraudulent under the statute of 13 Eliz., ch. 5, where the same is voluntarily made, the grantor being indebted at the time it was executed. A fraudulent intent will be presumed, from the fact that the party conveying was indebted at the time the conveyance was executed. Gilmore vs. N. Am. Land Co., Peters’ C. C. R., 460; Sands et al. vs. Codwise et al., 4 Johns., 536. Every conveyance not made on consideration valuable in law, is void as to pre-existing creditors. Sexton vs. Wheaton, 8 Wheat., 229; 1 Amer. Leading Cases, 52. A voluntary conveyance as to pre-existing creditors is, per se, fraudulent and void. Voluntary conveyances are void as to creditors; and in relation to pre-existing debts, neither the amount of the debts, the value of the property, nor the intention, is material; but the conveyance is fraudulent, per se. Hanson vs. Buckner, 4 Dana, 251; Miller vs. Thompson, 3 Porter, 198, 217. In the case of Read vs. Livingston, 3 Johns. C., 481, it was declared that the rule had no qualifications whatever; and that a voluntary conveyance is fraudulent in respect to existing debts, by presumption of law, without regard to the amount of the debts, the extent of settlement, or the circumstances of the party. See, also, Moore vs. Spence, 6 Jud. Ala., 506; Castillo vs. Thompson, 9 Jud. Ala., 937; O’Daniel vs. Crawford, 4 Devereaux, 197; Chapin vs. Pease, 10 Connecticut, 69; Parsons vs. McKnight, 8 N. H., 35; Gunn vs.. Butler, 18 Pick., 248; How vs. Ward, 4 Greenleaf, 195; 1 Dana, 532. In all cases, of fraudulent conveyances, as to pre-existing creditors, fraud is a question of law, and not of fact. Beers vs. Botsford, 11 Conn.; 369; Sherwood vs. Marwick, 5 Greenleaf, 295; Gardner Bank vs. Wheaton, 8 Greenleaf, 373. A gratuitous conveyance is always void as against creditors. Roberts on Fraudulent Conveyances, 450-1—2, and 591—596. The relation of debtor and creditor between Pierre Choteau and John Rice Jones commenced at the time of executing the administration bond, at least so as to entitle the former to contest the validity of the deed to the sons of the latter. 4 Greenleaf, 195, Howe vs. Ward; also Twyne’s case, 2 Coke, 80.
    4. An administrator, having obtained license from the proper Court, may sell lands fraudulently conveyed by the intestate during his life, and out of the proceeds pay the debts of his creditors. The principle as laid down is, that where a man indebted makes a voluntary conveyance to a child, without a consideration, and dies indebted, such conveyance is fraudulent, and the lands conveyed shall be considered as part of his estate after his death, for the benefit of his creditors. Townshend vs. Windham, 2 Ves., 10. A fraudulent estate, created to defeat creditors, is as no estate in judgment of law. Jackson vs. Burgott, 10 Johns., 457, ( per curiam,) and there cited Ferm- or’s case, 2 Coke, 77, and Twyne’s case, 2 Coke, 80. In the case of the Manhattan Co. vs. Osgood, reported 15 Johns., 162, Yates, J., said : “If lands were conveyed voluntarily, and without consideration, by the defendant, she being indebted at the time, it was illegal. If such conveyances are fraudulent and void', the fee remains in the defendant; and as to her creditors, it was the same as though she had never conveyed,” (and the case there cited.) A voluntary conveyance, by a grantor, who at the time of making it is insolvent, is void as respects creditors ; and the land, after the death of the grantor, is assets by descent or devise, in the hands of his heirs, or the devisees of the residuum of his estate. Ibid. In the case of Drinkwater vs. Drinkwater, 4 Mass., 354, Parsons, J., delivered the opinion of the Court: “ That when the estate is not insolvent, a creditor snay have the benefit of the estate fraudulently conveyed, in two ways : he may recover judgment against the administrator, and may extend his execution on the estate; or, the administrator having obtained license, may sell the estate at public auction, and out of the proceeds may satisfy the creditors. If the lands are liable to the payment of the intestate’s debts, the administrator may lawfully sell them on license, whether they are in the possession of the heirs, or if his alienee or disseizor; for no seizin of the heir, or of the alienee, or of his disseizor, can defeat the naked authority of the administrator to sell on license.”
    In Connecticut, the Courts have determined, “ that property fraudulently conveyed, is assets, which the administrator is bound to inventory, if he knows of it, and is entitled to recover.” Minor vs. Mead, 3 Conn., 289 ; Booth vs. Patrick, 8 Conn., 106; 11 Conn., 283. An administrator cannot sell real estate for the payment of debts, unless the intestate died siezed of it, or had fraudulently conveyed it away, or was colorably and fraudulently disseized of it. Willard vs. Nason, 5 Mass., 240; Drinkwater vs. Drinkwater, 4 Mass., 354. An executor or administrator has no interest in the real estate of the deceased ; he cannot intermeddle therewith; he cannot maintain an action to recover possession or seizin of real estate; nor can he defend in a real action. A recovery in a real action cannot prejudice the creditors ; his right to sell on license remains the same after as before the recovery. Drinkwater vs. Drinkwater, 4 Mass., 354; Henshaw vs. Blood, 1 Mass., 35; Gibson vs. Farley, 16 Mass., 280; Stearns vs. Stearns, 1 Pickering, 157; Bridgewater Co. vs. Bookfield, 3 Cowen, 299; Dean vs. Dean, 3 Mass., 258; also, 5 Mass., 240. An administrator is a trustee to creditors, and may avoid a fraudulent conveyance, for the benefit of such creditors. Thompson vs. Palmer, 2 Richardson’s Eq., 32; Neal vs. Haythrop, 3 Bland, 551; Gibbons vs. Peeler, 8 Pick., 254; Holland vs. Cruft, 20 Pick., 321; White vs. Brown, 2 Car. Law Rep., 449; Boston Bank vs. Minot, 3 Met., 507. In Pennsylvania, it is settled, that the administrator of an insolvent’s estate may set aside a fraudulent conveyance, as he is in such a case a trustee for creditors. Buchler vs. Gloninger, 2 Watts, 226; Stewart vs. Kearney, 6 Watts, 453; Welsh vs. Bekey, 1 Pennsylvania, 57; Englebert vs. Blanjot, 2 Wharton, 240. The same principle is now held by the Courts in New York. Babcock vs. Booth, 2 Hill, 182; Brownell vs. Curtis, 10 Paige, 210. The administrator is the representative of the creditors, &c., 11 Conn., 288. He is trustee for the creditors, 12 Wend., 543; 3 Bac. Ab., “Fraud. Con.” There is no privity between an administrator and an heir or devisee. 1 Munf., 446; 2 Peters, 523. Property of a debtor, which might be levied on and sold under execution, may be sold on license or order granted' to his executor or administrator. 5 Ohio R., 71, Brice vs. Myers et al. The voluntary donee may be charged as executor de son tort, if he take possession of the goods after the decease of the donor. Rob. on Fraud. Con., 593-4-5, and cases there referred to. When he takes possession after grant of administration or probate, the rightful administrator or executor may sue for the goods, or they may be treated as assets in his hands. 1 Yes., Peacock vs. Monk. One of the badges, evidence of the fraud in the conveyance, is mentioned, its being executed by the grantor on the same day with his will. “ A deed, with a consideration merely nominal, will, as it respects creditors, be treated as voluntary.” 4 Wash. C. C. R., 133, Ridgeway vs. Underwood; see Gooch’s case, 3 Coke, part 4, p. 60: “ For fraud and covin, because they are odious, are so privately and secretly hatched in a hollow tree, in arbore cava et opaca, and so artificially covered and concealed, that the party grieved has no means to find or know it,” &c.
    5. The deed of conveyance from John Rice Jones to George W. Jones and William P. Jones, is void as to the lands in Madison county, because of the uncertainty in the description; which is, “two entire sections of land, lying and situate in the Marine Settlement, and state of Illinois.”
    6. The purchasers from George W. Jones are not innocent purchasers without notice. The law fastens notice upon them, and adjudges them to be cognizant of the character of the title of their grantor. They are presumed to have known that the lands given by John Rice Jones, at his death, to his sons, were subject to the payment of his debts. The general rule is, that whatever is sufficient to put the party upon inquiry, is good notice. Where a party has knowledge of the facts, he has notice of the legal consequence resulting from those facts. The Ploughboy, 1 Gallis. C. C. R., 41; Pratt vs. St. Clair’s Heirs, 6 Ohio Rep., 93; 2 Sugden on Vendors, 335, 336, ch. 17. No principle is better established, than that a purchaser must look to every part of the title which is essential to its validity. Brush vs. Ware, 15 Peters, U. S., 93. When a purchaser cannot make out his title but through a deed which leads to a fact, he will be affected with notice of that fact. Mertins vs. Joliffe, Amb., 311. In all cases where a purchaser cannot make out a title but by a deed which leads to another fact, he shall be deemed cognizant of that fact. Dunch vs. Bennet, 2 Ch. Cas., 246; 1 Story Eq. Juris., ch. 7, sec. 399 ; 2 Fonb. Eq., B. 2, ch. 6, sec. 3, and note m. That which shall be sufficient to put the party upon inquiry, is notice. 13 Ves., 120. Also, see Dunch vs. Kent, 1 Vern., 319.
    The law requires reasonable diligence in a purchaser to ascertain any defect of title. But when such defect is brought to his knowledge, no inconvenience will excuse him from the utmost scrutiny. He is a voluntary purchaser; and having notice of a fact which casts a doubt on the validity of his title, the rights of innocent persons are not tobe prejudiced through his negligence. Brush vs. Ware, 15 Peters, U. S., 93; Jackson vs. Livingston, 10 Johns., 374; Willis vs. Bucher, 2 Binn., 455; see 1 Hoffman’s Ch. Rep., 153. Lis pendens is notice to a purchaser. 1 Story Eq. Juris., chap. 7, sec. 405; 2 Sug. on Vendors, chap. 17, sec. 3. Every man shall he presumed to have notice of a decree whereby his own title is affected. Fonbl. Eq., B. 3, ch. 3, sec. 1, note b., et seq.; 1 Story Eq. Juris., sec. 406. A deed fraudulent on the part of the grantor may be avoided, though the grantee be a bona fide purchaser, and ignorant of the fraud. 2 Johns. Ch. R., 41, 42, et seq. A purchaser without notice from a voluntary grantee, is not protected. 2 Fonbl. Eq., 212, n. “ The statute 13 Eliz. was made to protect creditors from fraudulent conveyances ; and the original deed being utterly void as to them, the grantee can make no valid conveyance, for, so far, he has no title.” The proviso in the act applies only to the original deed, and saves it when made to a bona fide purchaser, for a valuable consideration, however fraudulent the intention of the grantor. But such bona fide conveyance by the fraudulent grantee, is not so protected; and the policy of the act would be defeated by such extension, &c. If the debtor himself sells fairly, he acquires means to discharge his debts, and it may be presumed he will so apply them. If his fraudulent grantee be enabled to sell, the grantor cannot call those proceeds out of his hands, and the grantee can either appropriate them to his own use, or to any such trust upon which the conveyance may have been made.
    7. The fact that the deeds of conveyance for the lands in controversy, from Harvey Clendinnin, the administrator of John Rice Jones, deceased, to Pierre Menard, jr., and to the complainant, were not recorded in Madison county before those from G. W. Jones to certain of the defendants, is not material, because : The claimant does not derive title from G. W. Jones, or any one claiming under him. Lessee of Sicard vs. Davis et al., 6 Peters, 124; Rev. Statutes 1833, sec. 5. The recording acts apply only to such as have obtained a subsequent deed from the same person who executed the prior one. Rev. Laws of 1833, page 587, sec. 5. Where an executor sold and conveyed by deed testator’s land, by a power derived from the testator’s will, and afterwards the heir entered, and sold by deed the same land, without notice of the executor’s sale and conveyance, it was adjudged that the last conveyance was void, as the heir never had any estate which he could dispose of, and that the registry of the deed was immaterial. 1 U. S. Dig. Supp., 800, sec. 221; Herbemont vs. Bostick, 2 Brevard, 435. George W. Jones had no title to convey away, as against the creditors of John Rice Jones, deceased, or as against the purchasers under the order of the Circuit Court, at the sale made by his administrator. The recording act applies only to the purchasers of the title, asserted by virtue of the conveyance, and to creditors of the party who made it. The same general terms are applied to creditors; and to purchasers and surety the word creditors can mean only creditors of the vendor. Dicit Marshall, 6 Peters, 139.
    8. The purchase of the lands by George W. Jones, atthe sale made by the Auditor of state, January 19, 1833, on account of the non-payment of the taxes assessed for 1832, did not change or strengthen his title. He held by the same title after as before such purchase. Douglass vs. Dangerfield, 10 Ohio Rep., 152; Pratt vs. St. Clair’s Heirs, 6 Ohio, 93; Stiver vs. Stiver’s Heirs, 8 Ohio, 217; 4 Johns. Rep., 565, Sands et al. vs. Codwise et al.

    9. The Court of Chancery will entertain jurisdiction of a case where it is sought to set aside a deed, or have cancelled a deed or instrument that may throw a cloud or suspicion over the title or interest of the complainant. 2 Story Eq. Juris., secs. 694^5-6-8, 700-702; 2 Blackf., 295, Freakes vs. Brown. A purchaser at sheriff’s sale is not a subsequent purchaser, under 27 Eliz., and on that ground entitled to question a prior voluntary conveyance, but as a creditor under 13 Eliz., and stands in the place of the creditor upon whose judgment the land was sold. Lessee of Ridgeway vs. Underwood, 4 Wash. C. C. R., 129. A purchaser under a judgment creditor is entitled to the benefit of the statute of frauds. 2 Johns. Ch. R., 50, Hildreth vs. Sands. When the statute gives the principal remedy, it gives the incident remedy. “A purchaser at a sheriff’s sale under the judgment of a creditor, is entitled to the benefit of the statute of frauds, equally as the creditor himself, and may support a bill to set aside a previous fraudulent conveyance.” 14 Johns. R., 493, Sands vs. Hildreth. In the case of Roberts vs. Anderson, 3 Johns. Ch. R., 377-8-9, this doctrine is fully considered and recognized as the established and unquestionable construction of the 13 Eliz.
    Wax. Martin, with whom was Seth T. Sawyer, for appellees :

      A purchaser for a valuable consideration, from a voluntary grantee, will hold as against a grantee from the first grantee, for a full consideration. 3 Johns. C. R., 377-8; 18 Johns. R., 515 and 543. To set aside a deed for fraud against creditors, the bill must allege fraud and insolvency, and a want of other property with which to pay the creditor. Which fact must be admitted or proved. The voluntary deed from John Rice Jones to his sons, was good as a voluntary deed. 6 Cond. U. S. R., 270 ; 5 Wend., 588. The grantor must be insolvent when the voluntary deed was made, and to impeach it, fraud must be charged and proved. 6 Paige’s C. R., 62 and 526 ; 4 Wendell, 300; 7 ibid, 437; 1 Pet. Digest, 369, sec. 91; ibid, 82, sec. 53; 2 Pet. Digest, 367, secs. 71, 72.
    An administrator cannot take an order to sell land which had been fraudulently or voluntarily conveyed away by the intestate. 7 Johns., 160; 1 Brockenbrough, 500; Yelverton, 196; 1 Salkeld, 318; 1 and 2 Vermont, 333; 4 Blackford, 141 to 145; 6 Harris and Johnson, 61. To subject land voluntarily conveyed to the payment of the debts of creditors, a bill should be filed, praying that the heirs or grantees should pay the creditors the value of the lands conveyed, or that the land shall be sold for that purpose. 2 Brockenbrough, 132-3; 5 Ohio, 79; 1 Barber and Harrington’s Digest, 343, sec. 26.
    This bill, which is a bill by a purchaser, under the administrator, to set aside a voluntary deed, and not to subject the lands to the payment of debts, cannot, on the above principles, be sustained.
   Opinion by Treat, C. J.:

We are not prepared to decide that the deed from John Rice Jones to George W. Jones and William P. Jones, was void, as respects the premises in question, because of uncertainty in the description. There are references in the deed by which the lands can be ascertained and distinguished. It is stated in the conclusion of the description that the lands are “ all situated in the state of Illinois, and patented to the said John Rice Jones.” These words must be understood as applying to all of the lands intended to be conveyed. If so, the description, unconnected with the other lands included in the deed, reads, two entire sections of land, lying and situate in the Marine Settlement, and state of Illinois, and patented to the said John Rice Jones.” This description points directly to the evidence by which the two sections can be located. It is not pretended hut that the Marine Settlement was a locality well known when the deed was executed, and that the lands in dispute were situated within its limits. By an examination of the proper records, it could be ascertained what lands in that settlement were patented to the grantor. If but two entire sections were there entered by him, the precise locality and description of the lands designed to he granted would be rendered definite and certain. If no lands were entered by him in the settlement, or, if any, more than two full sections, it might be that the grant, as to the two sections of land, would be void, because no locality could he given them consistent with the description and references contained in the deed. There is no allegation in the hill that these particular sections were not patented to the grantor, nor any allegation denying an intention on his part to convey them. On the contrary, the bill distinctly states that they were patented to him. The complainant makes no case requiring the defendants to prove that these sections were designed to he embraced by the grant. The deed must be considered as including the lands in controversy.

But the deed, as clearly appears on its face, was a voluntary conveyance. Although valid between the parties, it was fraudulent and void as against pre-existing creditors of the grantor. Pierre Choteau was such a creditor, within the true intent and meaning of the statute. The liability which resulted in the judgment against him, as the security of the grantor, was incurred several years before the execution of the deed. The relation of debtor and creditor between principal and surety, so as to entitle the latter to avoid a voluntary conveyance made by the former, commences at the date of the obligation by which the surety becomes bound, and not from the time he makes payment. Howe vs. Ward, 4 Greenleaf, 195; Thompson vs. Thompson, 19 Maine, 244; Carlisle vs. Rich, 8 New Hampshire, 44. The surety had an undoubted right, on recovering a judgment against the administrator, which the personal estate to he found in this state was insufficient to pay, to proceed in equity to set aside the conveyance, and subject the lands to the payment of the judgment. McDowell vs. Cochran, ante, 31.

It is contended that an administrator may, for the benefit of creditors, impeach a voluntary conveyance made hy his intestate. We are satisfied that this position cannot be sustained. An administrator is authorized by statute, after he has exhausted the personal estate in the payment of debts, to apply to the Circuit Court, and obtain leave to sell so much of the real estate of which the intestate “ died siezed,” as will he sufficient to discharge the residue of the debts. John Rice Jones did not die siezed of the premises in question. The title had forever passed out of him. The deed was binding upon all the world but creditors, and subsequent bona fide purchasers. They alone could defeat the estate of the grantees. The deed was good against the heirs and personal representatives of the grantor. The former could take no greater estate than their ancestor had; the latter could assert no greater right than his intestate might have done. An administrator is not the agent or trustee of creditors, for the purpose of avoiding a fraudulent conveyance. He is the representative of the intestate, and succeeds to his rights and interests. He stands in his place, and is bound by his acts. Whatever was binding on the intestate is binding on his administrator. He is clothed with no greater power than the intestate possessed. He can no more call in question a voluntary deed than could the intestate himself. His powers, in the absence of statutory regulation, are confined to the personal estate. His authority to sell the real estate is derived from statute, and that restricts him to real estate of which the intestate was siezed at the time of his death; in other words, to such real estate as the intestate, while in life, had the right to alien and convey. The following cases are direct to the point, that an administrator cannot take advantage of a fraudulent conveyance made hy his intestate: Hawes vs. Leader, Yelverton, 196; Osborne vs. Moss, 7 Johnson, 161; Dorsey vs. Smithson, 6 Harris and Johnson, 61; Lassiter vs. Cole, 8 Humphrey, 621; Commonwealth vs. Richardson, 8 B. Monroe, 81; Peaslee vs. Barney, 1 D. Chipman, 331; Bank vs. Burke, 4 Blackford, 141. The decisions in Massachusetts, to the effect that an administrator may, as trustee of creditors, obtain license to sell real estate fraudulently conveyed by his intestate, are founded on a statute expressly declaring that real estate, thus conveyed, shall he liable for the payment of the debts of the grantor, and may be recovered and applied in the same manner as the lands of which he died siezed, in case the personal estate is not sufficient to discharge the debts. See the statutes of Massachusetts for 1805, ch. 90, sec. 5; and Martin vs. Root, 17 Mass., 222. The cases of Babcock vs. Booth, 2 Hill, 181, and Brownell vs. Curtis, 10 Paige, 210, are also founded on special provisions of statute. These decisions all show that, independent of the peculiar statutes on which they are based, an administrator possesses no power to avoid the voluntary deed of his intestate. The Courts in Connecticut decide that an administrator has the power, but the weight of authority is decidedly the other way.

But these general remarks, respecting the powers of an administrator, must be understood as applicable to the case of a direct proceeding or attempt on his part to set aside a fraudulent conveyance, and not to cases where creditors and purchasers have a right to conclude that the intestate died siezed of the premises, which the administrator has heen licensed to sell. In this case, it does not follow that the purchasers at the sale by the administrator, acquired no title as against the grantees of John Rice Jones. This is not a contest between the administrator and those grantees, in which the former is attempting to avoid the voluntary conveyance, and subject the lands to the payment of the debts of the grantor. The deed was not so acknowledged or proved as to be entitled to be recorded. By the act of the 19th of February, 1819, conveyances executed in another state, of lands situated in this state, were required to be acknowledged by the grantor, or proved by one of the subscribing witnesses, before a Judge of a superior Court, a mayor or chief magistrate a city, or clerk of a county Court, and certified under the common seal of the city or county, and recorded within twelve months after the execution thereof. The act of the 30th of December, 1822, authorized conveyances made in another state, and acknowledged or proved in conformity to the laws of such state, to be admitted to record in this state. This deed was. not acknowledged or proved according to the provisions of the law of 1819. That act conferred no authority on a notary public to take and certify the acknowledgment or proof. But if the notary had the authority, his certificate was clearly defective. He did not certify that the execution of the deed was proved by the oaths of the subscribing witnesses; but merely stated that the subscribing witnesses appeared before him, and acknowledged that the grantor executed the deed in their presence. Nor is there any evidence in the cáse to show that the execution of the deed was proved in pursuance of the laws of Missouri, so as to entitle it to be recorded under the aet of 1822. The deed, then, was not properly admitted to record. The registration of an unacknowledged deed gives it no additional validity or effect. It is not even implied notice of the existence of the deed. The grantees, therefore, failed to comply with the requisitions of the registry-laws, so as to give the administrator, creditors and purchasers notice of the grant to them. The personal estate of the grantor was not sufficient to discharge the claims established against the ■administrator; and the title papers of the intestate and the public records showed that he died seized of the lands in question. In this state of case, the administrator made application to the Circuit Court for an order to sell the premises. The grantees were heirs of the intestate, and, as such, had notice of and were parties to the proceeding. They failed to appear and disclose or assert any claim to the lands. Creditors and purchasers had the right to conclude, and to act on the conclusion, that the lands belonged to John Rice Jones at the time of his death; and that George W. Jones and William P. Jones had no other interest therein than as heirs at law of their father. Under all of these circumstances, it would be grossly inequitable to allow them now to set up the voluntary deed against purchasers, who paid a full consideration for the lands, without any notice, actual or constructive, of the prior grant. If the complainant had purchased the premises from the grantor, for a valuable consideration, and without notice of the voluntary grant; or, if subsequent to the death of the grantor, he had, in like manner, purchased from his heirs, there could not be a question but he would hold the lands as against the voluntary grantees. And this case, in principle, is not distinguishable from those. The sale is not sustained on the ground that an administrator may avoid a fraudulent grant, but for the protection of honest creditors and bona fide purchasers. Their rights ought to be regarded as more sacred than those of grantees who paid nothing for the lands, and who failed to register their title until purchasers had paid the consideration money, and the judgment of the creditor had been satisfied. The purchasers at the sale of the administrator succeeded to all of the rights of the creditor, in fraud of whom the conveyance was made; and they are entitled to the benefit of the statute of frauds equally as the creditor himself. Hildreth vs. Sands, 2 Johnson’s C. R., 36; Ridgeway vs. Underwood, 4 Washington’s C. C. R., 129; Sands vs. Hildreth, 14 Johnson, 493.

The purchase of a portion of the land by George W. Jones, at a sale for taxes, did not strengthen his title. That purchase was made prior to the sale by the administrator. He was then one of the owners of the land, and, as such, bound to pay the taxes assessed upon it. The purchase was but a mode of paying the taxes legally chargeable against him. He admits in his answer that he suffered the land to be sold, and bid it in for the purpose of defeating an older tax title, and not with a view of acquiring any new title. A purchaser at a tax sale of land, in which he has an interest as heir, acquires no additional title. Piatt vs. St. Clair’s Heirs, 6 Ohio, 93. A party, who claims title to land which is listed for taxation in his name, acquires no greater interest by permitting it to be sold for taxes and purchasing it himself. Douglass vs. Dangerfield, 10 Ohio, 152.

In our opinion, the complainant has a clear right to the relief claimed, as against the grantees of John Rice Jones. But omitting to put on record in due time the conveyance from the administrator, he cannot assert title against the grantees of George W. Jones, to the extent of the interest he apparently had in the lands. It is now the settled doctrine in this country, that a bona fide purchaser, for a valuable consideration, and without notice, either from a fraudulent grantor or grantee, shall be protected. He takes the estate discharged of the fraud that previously infected the title. 4 Kent, 464; Bean vs. Smith, 2 Mason, 252; Anderson vs. Roberts, 18 Johnson, 515; Oriental Bank vs. Hoskins, 3 Metcalfe, 332. The act of the 21st of July, 1837, provided that deeds, recorded in the proper county, should be deemed and taken to be notice to subsequent purchasers and creditors, whether the same were acknowledged or proved according to the laws of the state or not; and a proviso declared the provision applicable to deeds theretofore admitted to record. The registration of the deed from John Rice Jones became operative for the purposes of notice from the passage of that act. It is not questioned but that the grantees of George W. Jones were purchasers for valuable consideration. It is true, the deed from John Rice Jones appeared on its face to be a voluntary conveyance j and these purchasers were chargeable with knowledge of the law, that such a deed might be avoided by pre-existing creditors of the grantor, or subsequent bona fide purchasers from him. But all of them, except Anderson, purchased more than thirteen years subsequent to the execution of the voluntary deed, and the death of the grantor, and several years after the sale and*conveyance by the administrator, pursuant to a license granted in another county; and Anderson purchased subsequent to the sale of the administrator, and more than eleven years after the execution of the fraudulent conveyance. And all of their purchases were made and their conveyances recorded before the registry of the administrator’s deeds. They had a clear right to conclude from this length of time and the state of the records, that there were no antecedent creditors of John Rice Jones, and no subsequent purchasers from him or his administrator. They cannot be charged with notice of the application by the administrator for leave to sell the lands, for that proceeding was had in another county, and before they claimed any interest in the land. The conveyances from the administrator should have been recorded in Madison county, in order to protect the purchasers from him against the alienations of the voluntary grantees. The act of the 18th of January, 1833, in force when all of the conveyances were made but the one from John Rice Jones, declared that all deeds and title papers, of whatever description, for lands lying in this state, whether owned by residents or non-residents, shall be recorded in the county where the lands are situatedand shall take effect and be in force from and after the time of filing the same for record, as to all creditors snd subsequent purchasers, without notice, and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice, until the same shall be filed for record in the county where the said lands may lie.” Administrator’s deeds would seem to be clearly within the letter of this statute. They are certainly within the reason and spirit of its provisions. An order may be obtained, in the county where administration is granted, for the sale- of the lands of an intestate, situated in any part of the state. If this' class of conveyances is not required to be recorded,, a- purchaser' from heirs, at any distance of time after the death of the intestate, has no security that his title may not be defeated by the production of an administrator’s deed,, founded on an order of sale granted in a remote county. In the county where the order of sale is made, there would not seem to be the same necessity for the deed to be registered; and the record of the proceedings might, perhaps, there be held to be notice to a purchaser. Upon this point, however, we must be understood as expressing no opinion.

As to this branch of the case, it is' a contest between a purchaser succeeding to> the rights' of the creditors' of the fraudulent grantor, and bona fide purchasers from the fraudulent grantee. They are all equally meritorious and innocent, but the law in such case wisely favors the most vigilant. The one who first places his title on record must prevail.

George W. Jones; by virtue' of the voluntary deed, became seized of an undivided half of the lands; and,- on the death of his brother, without issue-,, he- took, as one of his heirs at law, one-seventh part of the other moiety. The purchasers from him are therefore entitled' to hold nine-fourteenths of the lands embraced in their deeds.

The result of our opinion is, that the complainant is entitled to a decree setting aside the voluntary deed as to the whole of the lands not aliened by George W. Jones, and as to five-fourteenths of the part conveyed.

The decree of the Circuit Court will be reversed, and a decree entered in this Court conformable to this opinion; the costs made by the purchasers from George W. Jones to be taxed against them, and the balance to be divided equally between the complainant and said Jones.

Decree reversed


author: Opinion by Mr. Justice Trumbull:

text:
    James Gray, appellant, vs. James W. McCance, appellee.

      •Appeal from Hancock.

    An injunction should not be dissolved, and a bill dismissed, upon the filing of an answer not under oath ,* or without evidence of the truth of the facts alleged in the answer.
    This was a bill filed by complainant, McCance, in which he alleged, that in the year 1839 himself and family settled and made his residence on the north-west fractional quarter of section eleven, in township seven north, range eight west, containing one hundred and fifty acres; that he had a valid right of pre-emption to said land; that on the 23d day of September, 1841, he proved his right of pre-emption before the register and receiver at Quincy, Illinois, and that the same was allowed by them; that he paid the price of said land, and took the receiver’s receipt in the usual form; that about the 28th day of May, 1842, said register and receiver, on the application of one Samuel L. White, without authority of law, of their own wrong, by usurpation of power, reviewed their decision granting to appellant said pre-emption, set the same aside, declaring it null and void. That in the year 1844, the appellee applied to said register and receiver for a pre-emption on said tract of land, and that said register and receiver, acting on false and fraudulent evidence, allowed him a pre-emption on said land, and received from him the purchase money thereof; that said appellee had, in fact, no right of pre-emption to said land, and states facts to show that he was not so entitled ; but that a patent has been issued to said appellee, upon which he brought an action of ejectment against appellant, recovered a judgment, and is about to turn him out of possession, and prayed and obtained an injunction, &c.
    On the 19th day of April, 1849, the defendant filed his answer, in which he does not deny any of the facts stated in complainant’s bill, but alleges that, on the fifteenth day of September, 1847, the plaintiff filed in said Court his bill against said defendant, in which he set up the same matters contained in this bill, and prayed the same relief ; that the defendant fully answered that bill, and that the injunction granted in that case was-dissolved; which bill is still pending and undecided, except bjr dissolving said injunction. All which fully appears by the record and proceedings in said case, remaining on file in said Court. Prayed that the injunction be dissolved and the case dismissed. And for that purpose, refers to the facts stated in his answer in the former suit, and makes them part of this answer.
    On the 20th day of April, 1849, the defendant moved the Court to dissolve the injunction and dismiss the bill. This motion was taken under advisement by the Court, “ and it was agreed by the parties, that the answer herein filed might be considered as an answer for the purposes of this motion.”
    On the 25th April, the appellant, complainant, moved for leave to file exceptions to defendant’s answer; which motion was overruled: on the following day, Minshall, Judge, dissolved the injunction and dismissed the bill. Both of which orders are assigned for error.
    S. T. Logan, for appellant.
    /Williams & Lawrence, for appellee, made the following ;'pó hats'-: ’■
    . The answer- or. plea in this case, may be technically informal, but as the plaintiff did not except, but agreed that it should stand and be considered as an answer, he cannot now except to it. " The'answer states facts which, if true, were a good bar to thé prosecution. The plaintiff, by filing a replication, might have controverted their truth, upon the hearing of the motion, but having failed to reply, he admitted the truth of the answer, and must now be considered as having consented that the Court should determine the law of the case, arising upon the facts. And there can be no doubt that, upon the merits, the hill should have been dismissed. The plaintiff having agreed that the answer should be considered and received upon the motion, had no right to retract his agreement or admission, and except to the answer.
    If there was any irregularity in the proceedings, it was waived by the complainant; substantially, and upon the merits, the decree of the Circuit Court was correct.' It being admitted by the pleadings, that there was another suit pending in the same Court, between the same parties, for the identical cause of action, and seeking the same relief, the complainant had no right to prosecute this suit. There was not, therefore, any reason for continuing it in Court, and the Court below did right to dismiss it.
   Opinion by Mr. Justice Trumbull:

The defendant, in an answer, not under oath, alleged that the complainant had previously filed a bill against him in the same Court, in which he set up the same matters, and prayed the same relief as in this case ; that he fully answered said first bill, and that such proceedings were thereupon had that the injunction granted in said suit was dissolved, hut that the suit was still pending and undecided.

The day after filing his answer, and before any replication thereto had been filed, the defendant entered a motion to dissolve the injunction granted in this case, and to dismiss the bill. This motion the Court sustained; and that decision is now assigned for error.

The decision of the Court was clearly erroneous. Admitting that the facts set forth in the answer, if proved—orJ^»g^Nd,h in a plea, and admitted—would have constitutj fence, the defendant, if he thought proper to answer, should have been required to furnish! truth. This, so far as the record shows, he answer furnished no evidence of the truth of I

The decree of the Circuit Court is reverse? remanded.

Decree reversed.


text:
    John Davis, appellant, vs. Elijah McVickers, appellee.

      Jlppeal from Cass.

    "Where the promissory notes sued on, and «an agreement respecting them, were executed at the same time, between the same parties, about the same subject matter, they must be construed together, and considered as forming btit one contract.
    If a party gives promissory notes as the consideration for land, and he cannot acquire the title to the estate purchased, there is a failure of consideration, which may be set up to defeat a recovery on the notes.
    In conveying lands sold on execution, a sheriff can only make the deed to the purchaser, his assignee or legal representative. A deed to a stranger would be a nullity.

      Elijah McVickers brought his action in the Cass Circuit Court, fey petition and summons, upon two promissory notes, for $300, given by Davis, the appellant, to him.
    Upon the return of the process, Davis pleaded failure of consideration, setting forth that the notes were given upon an article of agreement, executed between the parties, by which Mc-Vickers bound himself to convey to Davis, when the payments specified in said articles should be complied with, certain land therein described, referring in said articles to the notes sued on, and averring that the said McVickers had not conveyed, and had not, at the time of the giving of the notes, nor at the commencement of the suit, power to convey said land; because the said land had been sold by the sheriff of Cass county, upon a judgment and execution in the case of James McVickers us. John Morris, and a certificate of purchase executed therefor to said James McVickers; and that afterwards, said sheriff executed a deed for the said land to the said Elijah McVickers, who represented himself to be the sole heir of said James McVickers; whereas, in truth, James McVickers was living at the time of the execution of the sheriff’s deed, and entitled thereto. To this plea plaintiff demurred; there was joinder in demurrer, which was sustained by the Court. Woodson, Judge, presiding.
    The defendant below prayed this appeal, and assigned for error, the sustaining the demurrer to the plea.
    Stuart & Edwards, for appellant.
    S. W. Robbins, for appellee.
   Opinion by Treat, C. J.:

The notes sued on and the agreement set forth in the plea, having been executed at the same time, between the same parties, and respecting the same subject matter, must be construed together, and considered as forming but one contract. Bailey vs. Cromwell, 3 Scammon, 71; Duncan vs. Charles, 4 ib., 561. The agreement to execute a deed was not the real consideration of the notes; the true consideration was the estate agreed tobe conveyed. Tyler vs. Young, 2 Scammon, 444; Mason vs. Wait, 4 ib., 127. If it is not in the power of the plaintiff to make a good title to the estate, the defendant is not bound to pay the purchase money. He cannot he compelled to pay the notes, unless he can obtain that for which they were given. If he cannot acquire the title to the estate purchased, there is a failure of the consideration, which may be set up to defeat a recovery on the notes. Gregory vs. Scott, 4 Scammon, 392; Duncan vs. Charles, ibid, 561.

Does the plea show that the plaintiff is not in a condition to make a good title to the land? It alleges that James McVickers purchased the land at a sheriff’s sale, and received a certificate of purchase; and that, subsequently, and while the purchaser was alive and entitled to a deed, the sheriff conveyed the land to the plaintiff, as the sole heir of such purchaser. If these allegations are true, it is clear that no title passed by the conveyance. James McVickers was not bound by this act of the sheriff; and he may compel the sheriff to execute a deed to him as the purchaser, which will vest in him the legal estate. In conveying land sold on execution, a sheriff can legally only make the deed to the purchaser, or the assignee of the certificate of purchase; or, in case of the death of the party entitled to the deed, to his legal representatives. His deed to a stranger would be a nullity. The grantee of a sheriff does not make out title by the mere production of the sheriff’s deed. He must, in addition, show a judgment and execution, that authorized the sheriff to make the sale and conveyance. The deed passes no title unless it is based on a judgment and execution. The judgment is the foundation of the proceedings, and the grantee of the sheriff must connect himself with it, as the purchaser at the sale, or the assignee or legal representative of the purchaser. This, if the plea is true, the plaintiff cannot do. The attempt to do it, instead of showing title in the plaintiff, would prove that another person was entitled to a deed, who could compel the sheriff to execute it. The plea shows that the plaintiff is a mere stranger to the judgment and the proceedings under it, and has no interest in the title to be deduced therefrom.

The judgment of the Circuit Court will be reversed with costs, and the cause remanded for further proceedings.

Judgment reversed.


author: Opinion by Mr. Justice Trumbull :

text:
    Jerry Lequat, plaintiff in error, vs. The People, defendants in error.

      Error to Rock Island.

    A supervisor of roads is not bound, at all events, to open and keep in repair a new roadj but is only to do so, so far as the labor under his control will enable him.
    If there be any exception in the same clause of an act which creates an offence, the indictment for the offence must show, affirmatively, that the defendant does not come within the exception; but if the exception or proviso be in a subsequent clause or statute, or if in the same section, and not incorporated with the enacting clause, by any words of reference, it is, in that case, matter of defence, and need not be negatived in the indictment.
    In prosecutions against supervisors, for not putting up “ guide boards,” the indictment should allege at what crossings of public roads, in the road district, the neglect has occurred.
    This was an indictment against Jerry Lequat, in the Rock Island Circuit Court. Tried before Browne, Justice, and a jury, at May term, 1847. The indictment, after averring the appointment of Lequat as supervisor, describing the road district over which he was so appointed, notice, acceptance, &c., that a public road, describing it, was duly laid out, approved and accepted by the County Court, in Lequat’s district, charges, “ that the said Jerry Lequat, supervisor aforesaid, did not open and improve, or cause to be opened and improved, the road aforesaid, but has hitherto suffered the same to remain unopened, and in an unsafe, dangerous and impassable condition," and that the road aforesaid, in the road district aforesaid, is in an unsafe, dangerous and impassable condition.” “And that the jurors aforesaid,” &c., “ do further present, that the said Jerry Lequat, supervisor aforesaid, did not put up, or cause to be put up, guide boards at the crossings and terminations of the public roads, in his said district, as by law is required of him.”
    A motion to quash the indictment was overruled. A motion in arrest of judgment was also overruled. The Circuit Court having imposed a fine upon the defendant, upon the finding of the jury, he prosecutes his writ of error from this Court, assigning for error, the refusal of the Circuit Court to quash the indictment, and the refusal to arrest the judgment.
    S. T. Logan, for plaintiff in error.
    D. B. Campbell, for The People.
   Opinion by Mr. Justice Trumbull :

The indictment charges the plaintiff in error with neglect of duty, as a supervisor, in failing to open a new road, and to put up guide boards at the crossings of the public roads in his road districtbut does not allege that the labor of the persons bound to work on said new road, was sufficient to enable him to open it; or that he neglected to open it, so far as such labor would enable him to do so; neither does it state at what particular crossing he failed to put up guide boards, or even that there were any crossings of public roads in his road district.

A motion to quash the indictment was overruled by the Court below, and that decision is now assigned for error.

The indictment improperly attempts to charge the defendant with two distinct breaches of duty in the same count, instead of making two counts, as would have been the proper course : however, neither of said breaches is sufficient as stated. By the 20th sec. chapter 93, R. S., it is made the duty of supervisors, through whose road districts new roads are located, “ to make such roads within their respective districts, and keep the same in repair, so far as the labor of persons bound to work on said roads shall enable him.” The supervisor is not required, at all events, to open and keep in repair the new road, but only to do this, so far as the labor under his control would enable him to do so. The exception is contained in the same clause which imposes the duty, and should, therefore, have been negatived in the indictment. The rule is, if there be any exception in the same clause of the act which creates the offence, the indictment must show, affirmatively, that the defendant does not come within the exception; but if the exception or proviso be in a subsequent clause or statute, or if in the same section, and not incorporated with the enaeting clause, by any words of reference, it is in that case matter of defence, and need not be negatived in the pleading. Archbold Criminal Pl., 48; 1 Chitty’s Crim. Law, 283.

The charge of neglect of duty in not putting up guide boards, is altogether too indefinite and uncertain to apprise a defendant of what he is to answer. He has the right to know the specific nature and character of the offence charged against him, that he may prepare himself to defend against it. This indictment does not allege at what crossing of public roads the defendant neglected to put up guide boards, nor even that there were any crossings of public roads in the district. As well might a defendant be required to answer to an indictment charging him generally with neglect to keep the public roads of his district in repair, as to charge him with neglect in not putting up guide boards, without specifying where, or that there were any crossings in his district requiring guide boards to be put up.

The judgment of the Circuit Court is reversed.

Judgment reversed.


text:
    Thornton’s case.
    The 5th section of chapter ti, Revised Statutes, is void, because it assumes to legislate on a subject—the recaption of fugitive slaves—over which Congress, under the constitution of the United States, possesses the supreme and exclusive power of legislation.
    Hempstead Thornton, a negro, presented his petition to this Court, representing that he was illegally restrained of his liberty, upon which a writ of habeas corpus was forthwith issued, made returnable instanter. The writ was served upon Strother G. Jones, a constable of the county of Sangamon, whose return to said writ sets out, that he took possession of said Thornton, supposing him to be a fugitive slave, from the state of Missouri; that he, the said Jones, had a dispatch in his possession from St. Louis, Missouri, stating that slaves had fled from said state to said county of Sangamon, and that he had reason to believe, and does believe that the said Thornton is one of said fugitive slaves; and further, that he was, at the time said writ of habeas corpus was served on him, in possession of said Thornton, and taking him before a justice of the peace, to have him placed in custody as a fugitive slave; and further, that he had a writ from Jas. W. Keyes, esq., said justice of the peace, requiring him, Jones, to take possession of said Thornton, and bring said Thornton before him; which writ was made apart of said return. ?

    The writ of the justice of the peace is as follows:

    “ The People of the state of Illinois, to S. G. Jones, constable for said county:

    “ You are hereby commanded to bring before me the body of one negro man, supposed to be forty or forty-five years old, with one leg off, rather dark complexioned, name unknown; also one negro man, supposed to he twenty-five or thirty years old, with one short leg, supposed to be occasioned by the white swelling, dark complexioned, name unknown; also one negro boy, supposed to be nine or ten years old, copper color, name unknown; also one negro woman, supposed to be forty or forty-five years old, copper color, name unknown; and also one negro girl, about five or six years old, copper color, name unknown; as it appears from an affidavit made before me that the above described persons are runaway slaves, and believed to be without free papers, and placed in the jail of said county. Given under my hand and seal, this 16th day of January, A. D. 1850.

      e(J. W. Keyes, J. P. (seal.77)
    The foregoing writ of the justice of the peace was issued under the fifth section of chapter seventy-four of the Revised Statutes, which is as follows:

      “ Every black or mulatto person who shall be found in this state, and not having such a certificate as is required by this chapter, shall be deemed a runaway slave or servant; and it shall be lawful for any inhabitant of this state to take such black or mulatto person before some justice of the peace; and should such black or mulatto person jnot produce such certificate as aforesaid, it shall be the duty of such justice, to cause such black or mulatto person /"to be committed to the custody of the sheriff of the county, who shall keep such black or mulatto person, and in three days after receiving him, shall advertise him at the court-house door, and shall transmit a notice, and cause the same to be advertised for six weeks in some public newspaper printed nearest to the place of apprehending such black person or mulatto, stating a description of the most remarkable features of the supposed runaway; and if such person so committed shall not produce a certificate or other evidence of his freedom, within the time aforesaid, it shall be the duty of the sheriff to hire him out for the best price he can get, after having given five days previous notice thereof, from month to month, for the space of one year; and if no owner shall appear and substantiate his claim before the expiration of the year, the sheriff shall give a certificate to such black or mulatto person, who, on producing the same to the next Circuit Court of the county, may obtain a certificate from the Court, stating the facts, and the person shall be deemed a free person, unless he shall be lawfully claimed by his proper owner or owners thereafter. And as a reward to the taker up of such negro, there shall be paid by the owner, if any, before he shall receive him from the sheriff, ten dollars, and the owner shall pay to the sheriff, for the justice, two dollars, andj/easonable costs for taking such runaway, to the sheriff, and also pay the sheriff all fees for keeping such runaway, as other prisoners; Provided, however, that the proper owner, if any there be, shall be entitled to the hire of any such runaway from the sheriff, after deducting the expenses of the same; And, provided also, that the taker up shall have a right to claim any reward which the owner shall have offered for the apprehension of such runaway. Should any taker- up claim any such offered reward, he shall not be entitled to the allowance made by this section.”
    Upon hearing the cause, Thornton was discharged by the Court.
    Stuart & Edwards, for the petitioner:
    The statute under which the arrest in this case is made, and under which the detention is attempted to be justified, is unconstitutional and void.
    The whole power in relation to the delivery of fugitives from justice, and labor, has been delegated to the United States ; and Congress has regulated the manner and form in which it shall be exercised. The power is exclusive. The state legislatures have no right to interfere; and if they do, their acts are void. 2d and 3d clauses of 2d section of 4th article of constitution U. S.; 16 Peters, 617-'18, 623; 4 Wheat. Rep., 122, 193; 12 Wend., 312.
    W. I. Ferguson, for S. G. Jones, the constable having the petitioner in custody.
   Opinion by Treat, C. J.:

The process, by virtue of which the petitioner was arrested and is now detained, was issued under the provisions of the 5th section of the 74th chapter of the Revised Statutes. The manifest object of that section is to facilitate the recaption, of fugitive slaves, found within the limits of this state. All of its provisions point directly to such a purpose. By this section, a negro, coming into this state without a certificate of freedom, is presumed to be a runaway slave, and may be arrested and committed to jail as such. The sheriff is then to advertise him for six weeks in a newspaper, giving a particular description of his person. After the expiration of that time, he is to be hired out from month to month, for one year, unless the owner shall sooner appear and reclaim him. A reward is given to the person arresting him, which, together with all reasonable costs and charges, the owner is required to pay. The owner is permitted to receive the hire of the negro after the payment of all expenses. The person arresting him is declared to be entitled to any reward that the owner may have offered for his apprehension. It is evident from a bare inspection of the section, that its sole design is to aid the master in reclaiming his slave escaping into this state. Although the provisions of this section were incorporated into our statute as early as 1819, and seem to be dictated by a proper regard to the rights of citizens of other states, still we are constrained to pronounce them wholly inoperative.

The constitution of the United States declares that, “ no person held to service or labor in one state under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.55 Congress, legislating in pursuance of this provision of the constitution, by the act of the 12th of February, 1793, prescribed the mode by which the master may retake and remove his slave found in another state, and imposed penalties against those obstructing him in pursuing the remedy.

The Supreme Court of the United States, in the case of Prigg vs- The Commonwealth of Pennsylvania, 16 Peters, 539, decided that all state legislation, intended either to impede or assist the master in the recaption of his fugitive slave, was null and void, on the ground that the legislation of Congress on the subject was exclusive. Story, Justice, in delivering the opinion of the Court, said: “If this be so,/then it would seem, upon just principles of construction, that the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject, and by necessary implication prohibit it. For if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be that the state legislatures have a right to interfere; and, as it were, by way of compliment to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any farther legislation to act upon the subject matter.” Taney, Chief Justice, who did not agree with the majority of the Court on this question, remarked: “ But as I understand the opinion of the Court, it goes further, and decides that the power to provide a remedy for this right is vested exclusively in Congress; and that all laws upon the subject passed by a state, since the adoption of the constitution of the United States, are null and void; even although they were intended, in good faith, to protect the owner in the exercise of his right of property, and do not conflict in any degree with the act of Congress.” Wayne, Justice, in a separate opinion, said it was decided by the Court, ££ that the power of legislation by Congress upon the provision is exclusive; and that no state can pass any law as a remedy upon the subject, whether Congress had or had not legislated upon it.”

That decision is conclusive of the invalidity of this section of our statute. It is void, because it assumes to legislate upon a subject matter over which Congress has exclusive jurisdiction. It follows that the arrest of the petitioner was without authority of law, and he must be discharged from custody.

Prisoner discharged.


author: Opinion by Mr. Justice Catón:

text:
    Lucien B. Adams, et al. vs. The County of Logan.

      digreed case from Logan.

    A conveyance of land to a county, in consideration of tlie location of a county seat at a particular place, does not deprive tlie Legislature of tlie right to remove the same, whenever the public good shall require a change. Nor does such conveyance, if unconditional, give the donors of property a right of action for damages sustained, in consequence of such removal.
    Even had the donors of property made ail express agreement that the land should revert, in case of the removal of the county seat, it would not avail them, unless it had been expressed on the face of the deed, or in a separate instrument. Such an agreement cannot rest in parol.

      At the August term, 1849, of the Logan Circuit Court, the plaintiffs filed their declaration in assumpsit, containing two general counts: one for money lent and advanced, and paid out and expended, and the other for money had and received by defendant, for the use of plaintiffs. To this declaration, the defendant filed the plea of the general issue, to which there was a joinder. A judgment was entered pro forma for the defendant, by Davis, Judge, in the Circuit Court, upon the agreed case, which is in substance as follows: That, in consequence of the act of the General Assembly, entitled ££ an act to establish the counties of Menard, Logan and Dane,” approved February 15th, 1839, S. M. Tinsley, one of the plaintiffs, proposed, upon the condition that the county seat for Logan county should be at Postville, to erect a framed building, upon certain specified lots, which he would give to the county for a court-house, and other county purposes. M. L. Knapp, another of the plaintiffs, proposed to give two blocks of ground, upon the same condition. That the commissioners named in the said act, made said location temporarily at Postville. That Tinsley built the house as he proposed, and that Knapp conveyed the blocks of ground as he proposed. That afterwards the General Assembly passed ££ an act to locate permanently the seat of justice of Logan county,” approved February 17th, 1841; upon which the proprietors of Postville, in view of the provisions of the last named act, which required a donation of $3,000, on the permanent location of the seat of justice at Postville, proposed, first, that they be allowed the amount already paid for building the court-house, and for the several lots by them previously given to the county, the sum of $3,000. In addition to which they gave three additional lots ; and in lieu of one of the blocks given to the county, the plaintiffs gave their notes for $600, if the same should be reconveyed to them.
    This proposition was accepted by the county commissioners, by an order entered upon their records. That on the same day deeds of conveyance were executed by the proprietors, (the present plaintiffs) of the lots given to the county, with courthouse, &c., but these contain no conditions or reservations differing from ordinary deeds in fee simple. That by a subsequent act of the General Assembly, authorizing a vote of the people for that object, the seat of justice for Logan county was removed from Postville to Mount Pulaski. That afterwards, said lots and court-house were sold by the county for three hundred dollars, and the money was received by the county. That the plaintiffs, after the seat of justice was fixed at Postville, and before its removal, had sold a large portion of their real estate in the town, but still were the owners of a large amount; and that if the Supreme Court should be of opinion that the plaintiffs, or any of them, in any character which they or any of them have, are entitled to recover on the pleading and proofs, a judgment is to be rendered according to the rights of the parties, it being the intention that the case should not go off on any collateral question.
    The error assigned is, that the Circuit Court erred in giving judgment for the defendant.
    S. T. Logan, and Stuart & Edwards, for plaintiffs.
    Lincoln & PIerndon, for defendant:
    The plaintiffs in error in this case, made these donations with a knowledge that the county seat was not permanently located at Postville; and having this knowledge, if the county seat was removed, they have no cause to complain. They made these donations with the hope that it would advance their individual interests. Laws of 1838 and 1839, p. 106, section 8; Laws of 1846, page 31. This last act was passed at the special request of plaintiffs in error, and the county of Logan did not ask for it, nor participate in its passage. The original gift was immoral— against public morals and founded in corruption. It was to make officers do their duty. 1 Breese, 103; 2d Part ibid, 10; Story-on Contracts, sections 569-70; ibid, 571-72. Their remedy is against others, and not against the county. 8 Johnson, 385; 9 ibid, 73.
    C. Eoierson, on same side:
    The conveyance to the county vested the property in the county. Revised Laws, 132. The building the court-house was a voluntary act, and a donation, and cannot give the plaintiffs any cause of action. 5 Blackford, 182. The court-house, when built, became a part of the realty, and went with the land. The removal of the county seat did not divest the counfcy of its property, or give any cause of action to the plaintiffs, against the county. A permanent location of a county seat is no undertaking that it shall remain where located perpetually, or for any definite length of time. See the various acts locating county seats. 1 Blackford, 285. The location and removal of the county seat of Logan county, was the act of the legislature, and not the act of the county. County commissioners have no power to consent that county seats shall not he removed. County seats are located, and their locations changed, for the public good. 4 Blackford, 208.
   Opinion by Mr. Justice Catón:

We are of opinion that this action cannot be maintained. It is not, nor can it be denied, but that the Legislature still retained complete control over the county seat of Logan county, notwithstanding all that had been done fixing it at Postville. Nor was there any covenant or agreement that the money should be repaid, or that the lands should revert, which had been donated to the county, by the proprietors of Postville, under the several acts of the Legislature, to induce the location of the county seat at that place. When the money was paid and the land conveyed, the donors knew that the county seat might, when the good of the community should require it, be changed; and it must be presumed that they acted in view of such a contingency. Had they intended to guard against the consequences of such a removal, they should have made an express agreement or reservation to that effect, in the deed. So far from that, they made an absolute conveyance, without any reservation whatever. Even had an express agreement been made at the time of the conveyance, that the land should revert, in case of the removal of the county seat, it could not be proved by parol, but should have been expressed on the face of the deed, or at least in a separate writing. But here we are asked, in the absence of a parol agreement, to infer one, from the circumstances of the case. Had the deed upon its face contained a reservation, or had any specific purpose for which the land was conveyed been declared, from which a reservation might be implied, then we should have something upon which we could act, and we might, possibly, so far disregard the literal expressions of the conveyance, as to give effect to the spirit and intent of the transaction. Such was the case in Police Jury vs. Reeves, 18 Martin’s Louis. Rep., 221, where land was conveyed on condition that the public buildings of the parish should be erected thereon; and it was held to revert by the subsequent removal of the seat of justice of the parish, by the Legislature. But in this case, there was no such purpose declared. The case of Armstrong vs. The Board of Commissioners, 4 Blackford, 208, is a stronger case than the one before us. There, the commissioners appointed by an act of the Legislature, to relocate the county seat of Dearborn county, in pursuance of the authority vested in them, accepted the proposition of certain parties, who proposed to furnish money to build a court-house, in consideration that “they, the said commissioners under the said act, would make the said town of Laivrenceburgh, forever, the permanent seat of justice of said county.” The location was accordingly made, and the money advanced ; and yet it was held that the Legislature, by subsequently removing the county seat, violated no legal rights of the parties, for which they could obtain redress.

It is undoubtedly true, that the donors made this donation to the county, in order to secure the location of the county seat at Postville, with the expectation of being more than reimbursed, in the enhanced value of their other property in the place; and it is equally beyond doubt, that all the property in the place, as well theirs as that of others, may have more or less deteriorated in value, by the removal of the seat of justice. But it appears, that while the county seat remained at Postville, they sold to individuals a large portion of their real estate in and about that place; and in that way they have, undoubtedly, in part, if not entirely, been reimbursed, for the bonus which they gave the county. Should we allow them now to recover of the county, they would be twice reimbursed. Those who have bought property of them, or even of others, at the enhanced prices occasioned by the location of the county seat, have as much cause to complain as they have. Those to whom they have sold, have no means of recovering from them any portion of the amount which might be recovered from the county; and yet, if there is any equity in any portion of this claim, such purchasers have an equal right to a rateable proportion of what the county should be obliged to pay. If the county lias received money, which ex equo et bono the county ought not to retain, how shall we determine to whom it equitably belongs. The Court that should undertake to determine this, would find itself inextricably involved in a labyrinth of inquiries.

But the plaintiffs have no legal right to claim damages for the loss which they have sustained, by this legitimate exercise of power by the Legislature and the people. With equal propriety might one who has purchased canal lands, in view of the present location of the canal, claim to recover damages, in case the canal should he so changed as to diminish the value of his purchase. Such a claim would hardly be thought of.

In this case, the very fact that the donors gave an absolute and unconditional deed, shows that they expected to take their chance for retaining the county seat. Knowing, as they must have known, that the Legislature had the right to change the seat of justice, whenever the public good should require it, they might have insisted in their contract that the title should revert,, in case of a removal. But there is no such intimation, in any of their written proposals presented to the commissioners, during the negotiation. Had there been, perhaps Postville never would have been a county seat. The donation being unconditional, may have turned the scale in their favor. Be that as it may, we cannot now make a new bargain for them, and impose a condition where there is none.

The judgment of the Circuit Court must he affirmed, with costs.

Judgment affirmed.