| Ill. | Jun 16, 1880
delivered the opinion of the Court:
The bill in this ease was brought by Richard Goodbody and Jane E. Dady, heirs of Richard Goodbody, deceased, to set aside a sale of the lands described as having been collusively and fraudulently made by the administratrix to Francis A. Goodbody.
At the time of his death, which occurred on the 3d of December, 1850, Richard Goodbody was the owner of the lands which are the subject of this litigation. He died intestate. Soon after his death his widow, Catharine Goodbody, was appointed administratrix of his estate. Previous to his death Richard Goodbody had borrowed the sum of $300, and secured the same by trust deed on these lands. It does not appear the intestate left any personal property that could be applied to the payment of the mortgage indebtedness. The administratrix, however, with her own money, derived from her father’s estate, paid the holder the amount of his claim, which then amounted to $480, and took the note and mortgage to herself.
On application to the county court of the county where the lands are situated, an order was made for the sale of the premises to pay the debts of the estate, the principal one being the debt secured by the trust deed. Under that order a sale of the land was made, and Francis A. Goodbody became the purchaser, went into possession at once, and has since continued in the occupancy of such lands.
It is that sale that complainants seek to have set aside, and to have an account taken as to defendant Francis A. Good-body, of the rents and profits since he has been in possession, and for waste by him committed in removing timber. On the hearing in the circuit court the bill was dismissed for want of equity, and complainants bring the case to this court on appeal.
Numerous objections have been taken to the validity of the sale of the property made' by the administratrix, but in the view we have taken it will not be necessary to remark upon all of them.
There was authority in the administratrix to make the sale of the property, and no mere irregularity in conducting it will vitiate the sale as to a bona fide purchaser. The debt due from the intestate was not in fact discharged. It is true the administratrix had paid the debt to the holder, but it was with her own money, and what was done may very justly be regarded as equivalent to an assignment of the securities to herself. There being debts to be paid, and the court having acquired jurisdiction of the parties in interest in the usual mode, the order of sale made by the county court was valid.
That which seems to be most confidently relied on as rendering the sale fraudulent, and therefore void, is what is termed a corrupt agreement between the administratrix and the purchaser, made prior to the sale, that he should have the land for $1000, and a lot, to be conveyed to the son of the administratrix, of the value of $200.
On this branch of the case it may be remarked that the evidence fails to show there was any fraud in fact in the transaction. The administratrix was herself the principal if not the only creditor of the estate. She desired to sell the land belonging to the estate, and it was the belief of herself and the purchaser that it could be done at private sale. The terms of a sale were agreed upon between them, but on taking counsel it was ascertained it would be necessary to have the property sold under the order of the court, to divest the interests of the minor heirs. That was done. No doubt it was the understanding that defendant should have the property at the price agreed upon, no matter what sum might be bid for it at the sale. Under the agreement, had there been no bid equivalent to the price agreed upon, still defendant would have been obligated to take the land at that price, and had it exceeded that sum he was bound to pay no more. While it may be the price defendant was to pay for the land, had he obtained a good unencumbered title to the whole tract sold, was something less than its actual value, yet, in view of what transpired as to the title, the price paid was a very liberal one, and was no doubt more than defendant or any one else would have been willing to pay.
It will be remembered the sale of the land was made on the 12th day of March, 1853, and this bill was not filed until September, 1872. One of complainants, Richard, was then nearly twenty-two years of age, and the other, Jane, was then over twenty-three .years of age. Ho statute of limitation had then run against both of them, but on bill filed to set aside a sale on account of mere irregularities, or even corrupt practices, that may have occurred at the sale, the great length of time suffered to elapse before asking relief may well be considered. Were only jurisdictional questions involved, less consideration would be given to such an argument.
The sale was reported to the county court, was approved, and has stood for a period of nineteen years, unchallenged in any appropriate mode in which relief could be given. Had some of the objections now insisted upon, as to the regularity of the sale, been made to the coutaty court, it may be that court would have set the sale aside and directed a new one to be made. But no considerations of equity require that that should be done now. The decision need not, however, be placed on any statute of limitations, but on the ground that after the lapse of so great a period of time, a court will not set aside a judicial sale for mere irregularities, or even vicious practices at the sale, except where it would be equitable to do so, and then only upon terms to be imposed. Ho case warranting equitable relief is made by the proofs in this cause.
After the evidence was submitted, complainants asked leave to amend their bill so as to offer to refund such portion of the price paid by defendant as may have been used for their support and maintenance, and upon an account being taken of such sum, it might be set off against any rents due from defendant; and further, in case it was found such sale could not be set aside, that complainants should have a personal decree against defendant Francis A. Goodbody for $200 and interest, being the value of the lot he was to convey to Richard as a part of the consideration he was to pay for the land, and which it is conceded he failed to convey; but leave was denied, and that decision is assigned for error.
As respects the latter amendment suggested, it may be said it was-new matter, and a new ground of relief not insisted upon in the original bill. Leave was not asked to make this amendment until on the hearing of the cause, which was in October, 1879. More than twenty-six years had then elapsed since the sum claimed became due, and the court might rightfully deny leave to make such amendment. Had the other proposed amendment been allowed, it would have involved a rehearing of the whole case upon a new answer and further testimony. That, under the circumstances, the court in its discretion might well refuse to permit, and in that we see no abuse of that discretion with which courts are clothed in such matters.
The decree will be affirmed.
Decree affirmed.
In that part of this opinion which places stress on the lapse of time as an element to be considered as affecting the propriety of setting the sale aside, only Craig and Scholfield, JJ., concur with the writer. Mulkey, J., did not hear the case.