| Ill. | Apr 3, 1897
delivered the opinion of the court:
The placing the deed and note in the hands of Williams, with an agreement that the deed should not be delivered until the note was paid, did not change the liability of the maker of the note thereon. The note was his contract, and if not paid when due the lawful holder thereof might sue on the note, and after judgment with ft. fa. levy on the property for which it evidenced the consideration, or on other property. Such right might exist in favor of the payee or his assignee. The note could not by the maker or his heirs be held and considered as a liability against the land purchased, only, but is a contract for the payment of a sum certain and determinate at a specified time. As such it may, as against the maker or his heirs, be enforced and his property not exempt held liable to levy and sale. The holder of the note, who for his own benefit had the deed and note placed as an escrow, had a right to waive the advantage he had by the retention of the deed, and allow it to be delivered. The assignee of the note had the same right. Although the purchase of the note by appellee was at the request of the widow, the right to purchase existed and a valuable consideration was paid therefor, and appellee acquired all the rights of the payee. Between the holder or assignee and the maker or his administratrix an agreement might be made by which one took the deed and the other the note from the person who held them as an escrow, and each would have the benefit of his contract rights the same as if never placed in escrow, but delivered, respectively, at the time of their execution. The heirs had no right to object to such an agreement between the holder of the note and the administratrix of the grantor, neither were they entitled to notice of such proposed agreement and change. The defense made by the appellants that they were entitled to notice of the change, and their claim that the note must be enforced against the property for which the note and the deed were left as an escrow, cannot be sustained.
The note was filed and allowed as a claim against the estate of the maker thereof in the Superior Court of Santa Clara county, Cal., and a transcript of this, with other claims, placed in an envelope and sent to the county clerk of Macon county, Ill., where the intestate owned valuable lands and lots. No affidavit of the amount due or of the validity of the claim was filed therewith. The filing of the envelope containing the transcript must be held a filing of the transcript.
This was not a presentation of the claim such as required by section 60 of chapter 3 of the Revised Statutes of Illinois, which requires the claim to be sworn to when presented on the day of adjustment, if no objection be made thereto before it shall be allowed. Neither was it in compliance with section 61 of the same chapter, which requires, where a claim is not presented on the day of adjustment, that unless the executor or administrator waive process a summons shall issue, etc. The claim in this case was not allowed by the county court of Macon county. Its allowance by the Superior Court of Santa Clara county, Cal., against the administratrix there, did not create any liability against the administration or estate here. Administration here by a different representation was not dependent on the administration in that jurisdiction. There is no privity between the administrators. A judgment against the administratrix in California is not competent evidence to show a.right of action against either a domiciliary or ancillary administrator here, and cannot affect the assets of the estate here. (McGarvey v. Darnall, 134 Ill. 367" date_filed="1890-11-01" court="Ill." case_name="McGarvey v. Darnall">134 Ill. 367, and authorities cited.) Neither does the filing of the transcript of that judgment, with the note on which it was based, with the county clerk of Macon county in this State, constitute a judgment, but, following the statute, the appellee had a complete remedy at law for procuring judgment on her claim, and with such judgment the administrator was vested with a power to sell lands to pay debts on a proper proceeding. Without a judgment at law as provided for such cases she filed an intervening petition, and asked to have a part of the fund in the hands of the master, which was awaiting an order of distribution, paid to her. This proceeding seeks to reach the proceeds of real estate. It is, in fact, a proceeding against the lands itself without a judgment at law, and is a resort to chancery on a simple contract indebtedness. This cannot be done where the law provides a remedy. (McGarvey v. Darnall, supra.) The contention of appellee that a court of chancery has jurisdiction without reference to a judgment of the probate court allowing her claim cannot be sustained.
The decree of the circuit court of Macon county and the judgment of the Appellate Court for the Third District are each reversed and the cause is remanded, with directions to dismiss the intervening petition.
Reversed and remanded.