17 Ill. 135 | Ill. | 1855
The decree should be affirmed. The court have, in Alton Marine and Fire Insurance Co. v. Buckmaster et al., 13 Ill. R. 205, sanctioned the doctrine laid down in the Trustees of Louisville v. Gray, 1 Litt. R. 147; and Harris v. Smith, &c., 2 Dana R. 10, that “the holder of a legal title not in actual possession, cannot, as a general rule, maintain a bill to quiet his title, and to compel a relinquishment of adverse claims.” Niven v. Belknap, 2 John. R. 573. “ The reason why the party out of possession cannot maintain such a bill, is, that he may bring an action at law to test his title, which, ordinarily, a party in possession cannot do; such a bill is only entertained by a court of equity, because the party is not in a position to force the holder of, or one claiming to defend under, the adverse title, into a court of law to contest its validity; and this, as a general, rule, is the test to which a court of equity will look to determine whether the necessity of the case requires its interference.” 13 Ill. R. 205. And the question in 2 Dana R. 10 was regarded as one of jurisdiction.
But the reason of the rule, as thus laid down, is applicable to legal titles in persons out of possession, and would not embrace mere equitable titles, which could not be asserted at law. Though bills may be brought, sometimes, before establishing complainant’s rights at law, they are entertained with great caution, even on behalf of persons in possession, when there is no such disturbance of the right or possession as will enable the party to maintain Ms action at law. 1 Litt. R. 147. See 1 Atk. R. 284; 2 Atk. R. 484; Prec. Ch. 531.
This case presents no such grounds. The heir is out of possession and the defendants in, and the courts of law are not only open, but competent to try his title, which is a legal one. Upon a recovery by him at law, under our statute for bringing ejectments, under which the real title may be put in issue and determined, no apparent ground of equitable jurisdiction or interference would remain, not even in the shape of a cloud, upon the title.
The question involved seems to be one of a simple, naked succession by descent, being cut off by a decree and sale in a proceeding in equity against those alone who would have been heirs of the same intestate, had not this posthumous child been born in due time, together with the executor of the testator, from whom the intestate took by devise.
Our Statute of Wills (Rev. Stat. 45, p. 547, Sec. 54) has expressly provided for such a case, and that they shall take “ in all respects as though he, she or they had been born in the lifetime of the intestate.” An analogous statute (10 and 11 Wm. 3, Cap. 16) was passed in England, providing that posthumous children should take estates limited in remainder, under marriage or other settlements.
In Reeve v. Long, 1 Atk. R. 227, the House of Lords, reversing the judgment of the Court of King’s Bench, held that a posthumous child could take a contingent remainder limited under an executory devise in a will. This case was before the statute of William Third. And tradition gives us a reason for omitting such devises in the statute, that the Lords were unwilling to throw thereby a doubt upon the correctness of their own decision, with which the judges were much dissatisfied, and blamed the judge who tried the cause for suffering a special verdict to be found. Id. Butler’s note to Coke Litt. p. 298.
It is said there is no ground for a distinction under the statute between executory devises and marriage and other settlements. Buller Nis. Pri. p. 105; and in Roe v. Quartly, 1 Term R. 634, it seems to have been taken for granted that executory devises were within the statute. This case, among others, was cited and approved in Thellusson v. Woodford, 11 Ves. Jr. R. 140, and the court sustained an executory devise dependent upon nine lives in being, and the survivor of them. And although it was the manifest intention of the testator to prevent the alienation of the property as long as he could, and provide for an accumulation of rents and profits during the same period, yet, as much as the law abhors perpetuities—and judges set their faces against them—it was held that the period of gestation might be counted as a life, in being both at the beginning and the end of the nine lives; thus doubling the period of gestation, and treating each child en ventre sa mere, at the beginning and at the end of the lives, upon which the executory limitation depended for vesting, as a life in being, sufficient to sustain it. Many decisions are reviewed in it, and all of which fully sustain the position that such a posthumous child is not only capable of taking himself, but is such a life in being as will support a contingent remainder under an executory devise by will, and a contingent remainder limited by marriage or other settlements. See Love v. Wynham, 1 Mod. R. 50; Scatterwood v. Edge, 1 Salk. R. 229; Humberton v. Humberton, 1 P. Wms. R. 332; Sheffield v. Lord Orrery, 3 Atk. R. 282; Gurnall v. Wood, Willes R. 211; Robinson v. Hardcastle, 2 Bro. C. C. 30; Loddington v. Kime, 1 Ld. Raym. R. 207; Northey v. Strange, 1 P. Wms. R. 340; Burdet v. Hopegood, id. 486; Beale v. Beale, id. 244; Wallace v. Hodgson, 2 Atk. R. 117; Basset v. Basset, 3 Atk. R. 203; Gulliver v. Wicket, 3 Wils. R. 105; Doe v. Lancashire, 5 Term R. 49; Doe v. Clarke, 2 H. Black R. 399; Long v. Blackall, 3 Term R. 486; 7 Term R. 100; Harrison v. Harrison, stated from register book, 4 Ves. Jr. R. 338.
It is said in 11 Ves. Jr. R. 140, by Baron Macdonald, arguendo, that the rule is otherwise in case of descent, and which is strongly implied by our statute as amendatory of the common law; yet, whether we could or not derive the rule from the common law, which held it criminal to destroy such a life, we have it expressly given by statute, and the minor plaintiff falls clearly within it. The same rule was sustained as to devises in New York, without a statute. Stedfast v. Nicoll, 3 John. Cas. 18. The American law is so summed up by Mr. Hilliard, both by descent and limitations. 1 Hilliard on Real Prop., Cap. 45, p. 521. See 4 Kent Com. 248.
It has been held repeatedly by this court that the lands of oneX dying intestate descend to the heir; and although it is subject to the payment of debts, and may afterwards be divested by decree and sale of the administrator, the heir is nevertheless owner, and entitled to the rents and profits in the meantime. The administrator, therefore, takes neither an estate, title or interest in the reality; not even so much as to make judgments for debts against the estate absolutely binding by privity, as against the heir and the land on an application to sell to pay the debts. Stoneet al. v. Wood, adm'r, 16 Ill. R. 177. The administrator, therefore, takes a power, and not an interest. No argument supported by analogy to settled principles, and no authority or decision was shown, which would enable an administrator to support any possessory or real action, in law or equity, for the recovery or maintenance of possession or title ; or to clear up and vindicate title from clouds from adverse claims.
A very forcible argument was offered to show how beneficial it might be to so change the law as to allow administrators to do so, for the purpose of preventing sacrifices by selling under such circumstances of suspicion upon the title, since they have power to dispose of the whole fee. The object is a worthy and meritorious one, well calculated to promote the interests of both creditors and heirs. And had the heir filed his bill to enjoin a sale by the administrator at a sacrifice, until he could remove such depreciating influences with a bona fide offer, with convenient speed to do so, a much stronger ground for equitable interposition would have been presented. The law does not afford redress, literally, as broad as its theory and maxims. Every possible damnification is not a legal injury. So it was held in Burnap v. Dennis, 3 Scam. R. 478, that where a public sale of personalty by an administrator was prevented by threats to prosecute and litigate with any person who should purchase, no action was maintainable. The doctrine of slander of title does not embrace personalty, and administrators cannot maintain such action in respect of the realty. I am of opinion that an administrator’s rights and powers in this respect are no broader than his duties; and they are limited to the sale of the title and estate of the intestate and the due administration of the proceeds.
Decree affirmed.
I do not assent to the doctrine that an administrator whose duty it may be, for want of personal estate, to sell under authority of law the real estate of his intestate to pay debts, cannot in equity obtain relief by the removal of adverse apparent titles, or by the conversion of an equitable into a legal title. This may be, and often is, necessary to avoid sacrifice of the estate; and to deny it, would often defeat the very object of the sale—the conversion of the estate at its full value into money for the payment of debts.
I concur in affirming the decree.
