89 Ill. 104 | Ill. | 1878
delivered the opinion of the Court:
The facts stated clearly present no defense to the note. Allowing the full effect to such an agreement as here upon a guardian’s sale, it is evidently, upon the presentation here made, but an agreement of indemnity against the judgment and claims mentioned. It is admitted in the argument of both appellant and appellee that the judgment has been paid, so that no further notice need be taken of that. There has, as yet, been no disturbance of title or of the possession of the lot by reason of the claims mentioned, nor is it apparent that there ever will be, or that appellant, the purchaser of the lot at the sale, will ever suffer any detriment or inconvenience from the claims. They have only been filed, and have never been allowed as claims against the estate. William M. Colby died May 23, 1863—the present suit was commenced in February, 1877, and the trial had at the March term, 1877, nearly 14 years after the death, and even were it the fact that the claims in question are valid claims against the estate, the presumption would be thatthe creditors had waived their lien upon this lot for the payment of their claims, by failing to pursue their remedy within a reasonable time, the delay being entirely unexplained. As is held by this court, the creditor, under our law, has ample means, through administration, of subjecting the debtor’s estate to the payment of the debts against the estate, and a creditor will be considered to have waived his lien upon property descended if he does not pursue his remedy in a reasonable time, and although there is no express statute of limitation of the time within which such a lien must- be enforced, that where the delay of the creditors is unexplained, the period of seven years from the death of the intestate may be properly adopted, by analogy to the lien of judgments and the limitations for entry upon, and recovery of lands, as a bar to such liens. McCoy v. Morrow, 18 Ill. 519; Unknown Heirs of Langworthy v. Balter, 23 id. 484; Rosenthal v. Renick, 44 id. 202; Moore v. Ellsworth, 51 id. 308, and other cases.
There being no defense' shown to the note, the judgment was right, and it is affirmed.
Judgment affirmed.
