27 Ill. 209 | Ill. | 1862
The transfer from James Duncan to Letcher and from him to John Duncan, was so manifestly fraudulent, that we shall waste no time in discussing the evidence on that subject.
Was it necessary that a n¿w notice should be given to the administratrix whenever an alias or pluries or subsequent execution was taken out ? Section three, of chapter forty-seven, Rev. Stat., declares it shall be lawful to issue execution against estates of deceased persons; “ Provided, however, the plaintiff or plaintiffs in execution, or his or their attorney, shall give to the executor or administrator, if there be any, of such deceased person or persons, at least three montlis’ notice in writing, of the existence of such judgment, before the issuing of execution.” We can find nothing in the language or the reason of this statute requiring more than one notice, no matter how many executions may be issued for the collection of the judgment. The statute does not even require the creditor to state in his notice, that he intends to issue an execution upon the judgment; much less to state the time when he will issue it; but all that is required, is to notify the administrator of the existence of the judgment. The object of the law evidently was, to prevent the creditor from collecting his judgment by execution, while the administrator was ignorant in fact of the existence of the judgment. But after that fact was made known to him, in the mode required by the law, the judgment creditor has placed himself in the same position of right, as if the judgment debtor were still living, and the administrator is bound to take notice of everything that is thereafter done, which the debtor himself would be required to notice if living.
The only remaining question is, whether the receipt given by Kœrner to the administrator, for the plaintiff, is an estoppel upon him. We do not think that even if this receipt had been, given by Morrison himself, well knowing that the money had been raised by the administrator of John Duncan by the sale of this very land as the estate of John Duncan, that it would estop Morrison from setting up his claim to it. Had Morrison induced the administrator to sell it, and induced the purchaser to buy it, as the estate of John Duncan, then indeed would a court of chancery forever shut his mouth, so that he should never assert his claim to it, by reason of such a fraud practiced on the purchaser. But so far as this record shows, he knew nothing of this sale, at least till after it was completed, and the purchase money had passed into the hands of the administrator, as a part of the assets of the estate. It thus became a part of the general fund, and had to be distributed to the creditors of the estate generally. It does not appear even that it was sold specially to pay this debt, and if it did, the law says to the purchaser, caveat emptor.
But more than this, Kcerner was only authorized to receive this money generally for Morrison, and to give a general receipt therefor, and there is not a shadow of pretense for saying that he was authorized to sign any paper which should operate as a release of his interest in, or claim to this land, which, for aught that appears, was quite foreign to his mind when he requested Kcerner to collect this money for him.
The judgment must be affirmed.
Judgment affirmed.
Note.—Mr. Justice Breese did not sit at the hearing of this case, or take any part in the decision of it.