22 Ill. 253 | Ill. | 1859
This seems to be a plain case. The sale under the Stewart and Brown judgment, was a valid sale, because execution had issued on the judgment in the lifetime of the defendant, and was a lien on the estate of decedent.
The notice to the administratrix was properly given, under the statute, and the sale under this execution was valid.
But from this sale, the property was redeemed, and it became, by that operation, the estate of the decedent, with the title vested in his heirs at law. It was then as if a sale of it had never been had. The party redeeming, obtained no right to the land, nor does he in any such case. He only obtains the right to have the land, as the property of his debtor, again exposed to sale on his,judgment, and the redemption money is received by the officer as the first bid, and if any one advances upon that bid and is the highest bidder, the land is stricken off to him. In legal intendment, the land being all this time the property of the judgment debtor.
Thus then stands the case. The land was sold under a regular execution, as the property of John Turney, deceased. It was redeemed from this sale by consent of the purchaser, for there is no evidence that he objected, by which his right was yielded up and reverted to the estate of Turney, deceased. The legal title was then vested in his heirs, who are parties here.
Now to divest them of their title, it is a first and overruling principle, that they must have notice of some proceeding directly against them, for such purpose. They have had no notice, and this leads us to the consideration of the effect of Gates’ judgment, so called, and the sale of the land under it.
Was this judgment revived against the administratrix, such a judgment as created a lien on the real estate of the deceased, and on which a ft. fa. could issue to sell it ?
We think not. It is not declared by the statute to have that effect. It has no preference whatever over debts by simple contract, and can be paid, not by execution, by which a preference, in spite of the law, would be obtained, but is to be paid in due course of administration, like any other debt against the estate.
This was expressly decided by this court, in the case of Turney v. Gates, 12 Ill. R. 141, where that portion of this very judgment, authorizing this execution to issue, was reversed. We there say, that portion of the judgment awarding execution, was erroneous, but it was absolutely void, for the reason the court had no jurisdiction over the heirs to order a sale of their land, they never having been served with process of sci. fa., and were, in no sense, parties to it. The judgment had ceased to be a lien upon the land of the deceased, the title to which was vested in the heirs at law, and the court had no authority to revive the lien they lost, and the attempt to do so, without notice to the heirs, and terre-tenants if there were any, or a proper appearance by them, was void for want of jurisdiction over their persons. No judgment is valid, if the court rendering it, has not jurisdiction of the person, as well as of the subject matter, and this, on principles of natural justice. No man is to be condemned without the opportunity of making a defense, or to have his property taken from him by a judicial sentence, without the privilege of showing, if he can, the claim against him to be unfounded.
The execution issuing upon this judgment therefore, gave the creditor no power to levy it on the real estate left by the deceased, the title to which, on his death, vested in his heirs at law, and they had no notice. The judgment, execution and sale, is, as to them, void.
The judgment of the court below is reversed, and the cause remanded.
Judgment reversed,.
