delivered the opinion of the court:
Thе appellee, Clarence Y. Eddy, filed his bill in this case in the circuit court of Whiteside county to impeach and set aside for fraud, want of jurisdiction and disregard of his constitutional rights, a decree of that court in a partition suit and proceedings thereunder, depriving him of his undivided one-tenth interest in over 400 acrеs of land in that county. The defendants were Seward A. Eddy, complainant in the partition suit; Newell R. Eddy, Lloyd Y. Eddy and Dana O. Eddy, defendants therein, who purchased the premises at the master’s sale; Leonard J. Doll, Riely Greth and William J. Doll, their grantees; and R. C. Burch-ell, a mortgagee, who are the appellants. The bill alleged thаt the appellee was the owner of an undivided one-tenth of the lands by devise from his father, York Eddy, and that the former proceedings to partition were void as to him for the reasons in the bill and hereafter set forth. The appellants interposed a general and special demurrer to the bill containing nineteen specifications of alleged defects therein, and the demurrer being overruled they then filed a plea to so much of the bill as sought to set aside the former decree for partition, setting forth in the plea the material parts of the procedure in the former suit, and they answerеd the residue of the bill which' charged fraud in the proceeding. The evidence was heard by the chancellor and a decree was entered according to the prayer of the bill, finding that the former decree and all proceedings subsequent thereto were void as against the appellee but were binding on the other parties to the suit; that the appellee was entitled to partition, and that the purchasers at the partition sale were liable for rents of the appellee’s interest in the lands from the time of their purchase -until a subsequent conveyance by them to other aрpellants. The former decree and proceedings were set aside as against the appellee, a decree was entered against the purchasers for rents in accordance with the finding, and partition was ordered. Erom that decree this appeal was prosecuted.
York Eddy, the owner of the lands, died testate on October 31, 1911, leaving a widow, nine children and four children of a deceased daughter. By his will he devised a life estate to his wife with remainder to his ten children or their heirs, share and share alike. His estate was settled, and the widow having died, the appellant Seward A. Eddy, one of the sons, filed his bill on November 9, 1914, in the circuit court, making the other devisees defendants, with others, stating the title to the lands as devised and alleging that the appellee, Clarence Y. Eddy, was the owner, as tenant in common with the other devisees, of an undivided one-tenth of the lands. On January 4, 1915, the complainant by leave of court filed his amended bill, making the same averments as to the land and ownership thereof, against the same defendants, including Clarence Y. Eddy, “if he be alive,” but alleging that Clarence had resided at Erie, White-side county, Illinois, until about ten years before that time; that Erie and vicinity were his usual places of abode; that more than ten years before that time he left Erie and has never since returned; that he had not been heard of by any of his relatives and friends for more than eight years; that the complainant had made inquiry among the friends and relatives of Clarence and had been entirely unable to ascertain whether or not he was living or dead or to ascertain his whereabouts, residence or post-office address; that Clarence, if living, would be of the age of fifty-four years; that he had never been married, and the complainant believed that he was dead and died a single man, leaving no children or descendants. The bill then alleged that by virtue of the will of York Eddy and the death of appellee his brothers and sisters were each the owners of an undivided one-ninth part and the grandchildren of an undivided one-thirty-sixth part each, of the real estate as his heirs-at-law. The other devisees answered the amended bill, admitting the devise by York Eddy and admitting the averments of the bill as to Clarence Y. Eddy, and that the real estate was then owned, as averred in the amended bill, by the other devisees by virtue of the devise and as heirs-at-law of Clarence. In the amended bill the appellee was named as a defendant “if he be alive,” but it was averred that he was not living, and facts were stated which raised a legal presumption of his death. The court by the decree found and recited the same facts alleged in the bill concerning the absence of Clarence Y. Eddy, and found that he was no longer living but departed this life at some time within the lаst ten years; that at the time he left Erie he had not been married and was never afterward married, so far as any of his relatives and friends knew; that he died a single man and left no last will and testament; that his estate passed to the other devisees as his heirs-at-law, and that when he departed this life he left surviving him as his only hеirs-at-law his brothers, sisters, nieces and nephews. The decree ordered partition in accordance with the averments of the amended bill, giving to the sons and daughters each a one-ninth part of the real estate and to the four grandchildren each one-thirty-sixth part. The commissioners reported that the lands could not be divided and a decree for a sale was entered, and they were sold to the complainant, Seward A. Eddy, and the defendants Newell R. Eddy, Lloyd Y. Eddy and Dana O.Eddy. The sale was approved and a deed to the purchaser was made by the master and a decree of final distribution was еntered on June 28, 1915. On September 1, 1920, the purchasers at the master’s sale entered into a contract with the appellants Leonard J. Doll, William J. Doll and Riely Greth for a sale and conveyance of the lands for $81,350. The payments were to be $7000 cash, $25,000 by assuming a mortgage, and the balance of $49,350 to be рaid on March 1, 1921. An abstract of title was to be furnished showing a good merchantable title and possession to be delivered March 1, 1921, upon the final payment. The cash payment of $7000 was made and a deed was executed and deposited iñ a bank at Erie, to be delivered on compliance with the terms of the agreement. The appellee returned to Erie from his residence in Canada on February 20, 1921, and learning that the lands had been sold, notified the appellants who were purchasers at the master’s sale, and Leonard J. Doll, William J. Doll and Riely Greth, to whom the lands had been contracted, of his claim of title. The appellants refused to recognize such title, and Leonard J. Doll, William J. Doll and Riely Greth took security from the purchasers at the master’s sale against the claim of the appellee and the deed and possession were delivered.
The grounds of demurrer are again arguеd, but the demurrer was waived by answering except as to innate substantial defects of which advantage could be taken on the final hearing. (Gordon v. Reynolds,
Counsel for appellants contend that the circuit court acquired jurisdiction of appellee in the partition suit instituted by Seward A. Eddy, by publication and mailing notice to him as a living non-resident; that, having such jurisdiction of his person, the decree finding that he had died intestate and unmarried and that his interest in the lands had descended to his brothers and sisters, nephews and nieces, was a mere error of the chancellor, and not having been set aside on appeal or error was binding upon him. That argument involves the strange proposition that the chancellor found that jurisdiction had been obtained over a person found in the same decree to be deаd. If it should be assumed as a fact that there was substituted service on the appellee by publication and mailing notice and no appearance in response to the service, the decree would not be a mere erroneous decision by the chancellor of an issue but would be a gross and palpable fraud not tolerated by a court of equity, and against which such a court would relieve unless the appellee was barred in equity from impeaching the decree for such fraud. The amended bill alleged ownership by the appellee of the one undivided one-tenth interest in the lаnds. The other devisees by their answer admitted the devise to appellee by his father and that he was thereby invested with the title. If, as now claimed, he was treated by the chancellor as a living person, there was not the slightest basis in the amended bill for claiming that the title had passed to the other devisees, and no issue was formed for the chancellor to decide. Taking such a decree and proceeding to execute it would be a fraud on the other parties, which would be relieved against by a court of equity.
It is not true, however, that jurisdiction of the appellee was obtained in the partition suit. By thе decree in this case the chancellor found that the court in the partition suit did not acquire and have jurisdiction of the person of the appellee by publication or otherwise and did not find or adjudge facts constituting such service. The decree in the partition suit is not contained in the abstraсt, but an incomplete portion of the decree regarding jurisdiction by substituted service is contained in the brief and argument for appellants. Reading the portion omitted by counsel, the decree does not show jurisdiction of the appellee. In the files there was found a certificate of publication of notice to him and other non-residents but none showing the mailing of notice to appellee at Erie or elsewhere. The absence of such a notice would not show want of jurisdiction if the chancellor in the decree had found the necessary facts constituting jurisdiction. The decreе found, in general terms, that the court had jurisdiction of all defendants, but that was a mere conclusion of law necessarily implied from the exercise of jurisdiction. It would be inferred that the court concluded there was jurisdiction to enter the decree which was entered, but there was no finding of fact which supрlied the absence of proof in that respect. It is immaterial, however, whether the court had jurisdiction, and the decree was voidable against the appellee for fraud or the decree was void for want of jurisdiction. The necessary direct and immediate effect of the decree and proceedings thereunder was to deprive the appellee of his estate without jurisdiction and without any process of law whatever, or by fraud, without any showing of anything which could constitute a bar to this suit.
By the decree in the former suit the court found that the appellee had died unmarried and without descendants, which was in accordance with the allegations of the bill and the admissions of the answer. The facts found by the court as proved, raised a legal presumption which justified a finding that the appellee was dead. The continuous absence of a person from his home or place of residence for a period of seven years, during which nothing is heard from or concerning him, raises a presumption of his death for all legal purposes. (Whiting v. Nicoll,
The purchasers at the sale were the complainant and three of the defendants, who being parties to the record were chargeable with notice of the rights of the appellee. An innocent third party is not required to look beyond the jurisdiction of the court in purchasing property under a decree. (Guiteau v. Wisely,
All the persons having or claiming any present interest in the lands sought to be partitioned were made defendants in this case and there was no lack of proper parties.
The decree is affirmed.
n £C , Decree affirmed.