| Ill. | Jan 15, 1866
delivered the opinion of the Court:
It appears that the lands involved in this controversy belonged to Jesse McKee in his life-tinae. At his death he made his will, by which he charged all of his estate, the personal property first, and the real estate last, with the payment of his debts, and the residue he devised and bequeathed equally to his wife and his nephew Jerome McKee. Letters were granted upon the will, and the debts seem to have been paid in due course of administration, except one to Yansyckel, successor of Yansyckel and McConnel. A release was executed by his widow, who had intermarried with Hugh L. Sutphin, of this and other property of the estate to J eróme McKee, in consideration of a portion of the estate transferred to her, as her share of the residue. After this division was made, William McKee conveyed the property in controversy as executor of Jesse McKee to Jerome, for the consideration of twenty-four hundred dollars, for which the latter gave his bond, and authorized the former to sell the premises and to collect, compound and receive the debts due the estate, and to account to him for the proceeds free of charge except for attorneys’ and officers’ fees.
In the summer of *1849, McOonnel and Yansyckel having learned that Jerome McKee had died, leaving no children, filed a bill against the executor of Jesse McKee, the widow, the father and brother of Jerome as his legal heirs, to establish their debt and to subject the lands to its payment. On the hearing the court found that the debt was unpaid, that this property belonged to the estate of Jesse McKee, decreed its payment by a day named, and in default of such payment, that this property be sold. The money was not paid, and the property was sold by the master, and the sale was approved by the court.
In 1852, defendant Smith, claiming to be a creditor of Jerome McKee, deceased, took out letters of administration on his estate. He claimed that this property belonged to his estate, and was liable for the payment of his debts. He applied for and obtained an order of the court for their sale for the payment of Jerome’s debts, and he proceeded to sell the lands under that order, and defendants Detrick and Chambers became the purchasers, giving their notes, with a condition that the same should not be paid if it should be made to appear that any other person has a better title to the lands.
The purchasers under defendant Smith’s sale instituted ejectment suits against Ely Mygatt, Murray McConnel and Green Mygatt who derive their title under the master’s sale of these premises, to satisfy the decree in favor of McConnel and Yansyckel. This bill was exhibited to enjoin these ejectment suits. A temporary injunction was allowed. After the decree in favor of McConnel and Yansyckel was rendered, the widow of Jerome McKee, in the month of Movember, 1849, gave birth to a male child who is also named Jerome McKee. Prior to the last trial of the cause in the court below an amended bill was filed, to revive the decree in favor of McConnel and Yansyckel, to again subject the land to a sale under the decree in case it should appear that Jerome McKee, Jr., was a posthumous heir of Jerome, Sr. On the trial below, the court dismissed the original, amended and cross-bills, and found that Chambers and Detrich were the owners in fee simple of the premises, and awarded a writ of possession. The cause is brought to this court by appeal to reverse that decree.
' In the court below the parties stipulated that the finding in that court on the question of whether Jerome McKee, Jr., was the posthumous child of Jerome McKee, deceased, be final. As it was there found that he was, the case, as it now comes here, is freed from that question
It appearing that Jerome McKee, Jr., who inherited the property from his father, was not a party to the bill of McConnel and Vansyckel, to subject the land to the payment of their debt due from. Jesse McKee’s estate, his title was not affected by that proceeding. This court has repeatedly held, when this case has been previously before us, that the title passed to him unaffected by that decree. And we are satisfied with that conclusion, and are not disposed to again discuss that question, but shall treat it as settled and placed at rest.
But he is made a party to this proceeding, and the question presents itself whether he is prima facie bound by that decree, in so far as it adjusts and finds the indebtedness of the devisor of his father from whom he inherits this property. That the decree was conclusive upon the executor and the other parties to the suit, there can be no question. It is equally true, that it is, until reversed, absolutely binding against the personal assets of the estate. And it is also held to be prima facie binding upon the heir. The executor was the only necessary party to a proceeding to charge the estate with the allowance of such a claim, and to avoid its effect as a charge upon property held by the heir or devisee, it is necessary that it should be impeached by them. In this case no such effort has been made.
But it is insisted that Jerome, Jr., did not inherit the property from his father as devisee, but as a purchaser for a valuable consideration. If it be true that the father held by purchase, then there can be no pretense that defendant, Jerome McKee, inherited it with this charge annexed, or that the purchasers at the sale of his father’s administrator acquired the title subject to such a burden. Then, did Jerome McKee, Sr., hold these premises as a devisee or as a Iona fide purchaser for a valuable consideration % We feel that we may safely conclude, that at the time Jesse McKee’s widow and his executor conveyed to Jerome McKee, deceased, it was supposed by the parties that the estate was finally settled. This, we think, appears from the fact that a division of the property seems to have been made between the devisees, and the further fact that Jerome, deceased, authorized the executor to settle, collect or compound the debts of the estate, and to pay the money to him free of charge, except attorneys’ and officers’ fees. It is true that the deed or instrument executed by both the executor and J eróme, Sr., purports to convey the property to the latter for the consideration of twenty-four hundred dollars, for which the latter had given his bond. How, if the estate was indebted, why authorize the executor to collect the debts and pay them to him instead of the creditors ? Or why convey to Mrs. Sutphin her portion of the estate, and Jerome pay perhaps a full consideration for his part % It is not reasonable to suppose that such was the case.
It is more rational to conclude that the bond referred to in the deed is that required by the one hundred and twenty-ninth section of the statute of wills, which requires the legatees or distributees to give a bond to refund their proportion of the fund, in case it shall become necessary to do so for the payment of debts of the estate, before they are entitled to receive bequests or shares of the estate. We then conclude that this deed was made by the executor to vest in Jerome his share of the estate, and not as a sale to obtain funds for the payment of debts. It then follows, that he took this property charged with the incumbrance of any debts the estate still owed, McConnel and Tansyckel’s included. And, as the property descended to J eróme, Jr., and he took as heir, and not as a purchaser, it vested in him in the same situation.
We then find that this property was chargeable with this debt at the time defendant Smith sold as the administrator of Jerome McKee, deceased. Then did the purchasers at his sale acquire the title freed from, or subject to, this incumbrance ? As a general rule, subject, it may be, to some exceptions, a purchaser at an administrator’s sale acquires it with all the incumbrances to which it is liable. The doctrine of caveat emptor applies. If the purchasers at this sale examined the records, and we must presume that they did, they found that the title was derived through the will of Jesse McKee, and that it charged this property with the payment of his debts. In tracing the title, they found that the title passed into Jerome McKee, the devisee, subject to the same charge, and that by his death and by the subsequent birth of his son, the title passed to him in the same condition. The proceedings in chancery in the case of MeConnel and Vansyckel, against the executor and supposed heirs of Jerome, deceased, were a matter of public record in the county in which the lands were situated, and were notice to the world. It is hardly probable that they could have became purchasers without being actually informed of that whole proceeding. At any rate they are chargeable with notice, that the debt had been there ascertained and found against the estate. And knowing, as it must be presumed they did, that the will charged'this property with the payment of this debt, and having such notice, they purchased, and no doubt acquired the title subject to the incumbrance. That they had notice may be inferred from the unusual condition inserted in their notes.
But inasmuch as Jerome, Jr., was not a party to MeConnel and Vansyckel’s bill, the purchasers under that decree acquired no title. Though, as by it, their claim against the estate and their lien against this property was established, and inasmuch as Chambers and Detrick purchased subject to that lien, and inasmuch as the justness of that debt, as allowed, has not been impeached by Jerome, Jr., or the other defendants, the plaintiffs in error have a right to relief. MeConnel and Vansyckel have the right to enforce their debt against this property. And all the parties in interest being before the court, a decree should have been rendered, requiring it to be paid, and in default of such payment, that the property should be sold for its satisfaction.
The decree of the court below is therefore reversed, and the cause is remanded, with instructions to the court below to enter a decree "dissolving the injunction, setting aside the sale by the master under the decree in favor of MeConnel and Vansyckel, an.d that Detrick and Chambers pay the amount of money found to be due from the estate of Jesse McKee, deceased, to MeConnel and Vansyckel, together with interest to the date of the decree in this case, within ninety days; and in default of such payment, that the master in chancery sell all or so much of the premises as may be necessary to pay the same, after giving sixty days’ notice, by publication in a newspaper published in the county in which the lands are situated, and by posting up written or printed notices in the neighborhood of the lands; that the sale be at public vendue to the highest bidder for cash, at the door of the court-house of the county in which the lands are situated; that the master execute deeds to the purchasers; that complainants McConnel, Yansyckel, Ely and George Mygatt pay one-half of the costs of this suit and of the ejectment suits, and that the other parties pay the other half of the costs. °
Decree reversed.