| Ill. | Apr 15, 1864
delivered the opinion of the Court:
The first question arising upon this record is, whether the judgment entered in the Cook Circuit Court, on the 23d day of August, 1844,.against Wight and in favor of Dundas and other parties, became a lien upon the premises in controversy. It appears that the court met on the day the judgment was entered, and was duly opened, and, after the transaction of some business, the presiding judge adjourned until the next day, and left, with the direction to the sheriff and clerk, to meet and open and adjourn the court from day to day, until Judge Young should arrive. As directed, these officers did continue to meet and declare the court opened and adjourned each day, until the thirtieth day of that month, when an entry was made declaring the court adjourned until the next regular term. It also appears that Wight died on the third day of the following September. Mo execution was issued on the judgment before Wight’s death, but the first was issued on the 7th day of February, 1845, which was returned in the ensuing month of March unsatisfied, by order of plaintiff’s attorney. Between that time and the fifth day of the following September, three other execiitions were issued and returned unsatisfied. On the 10th day of May, 1845, plaintiffs in the judgment gave notice to Bussell, who had in the mean time become administrator, with the will annexed, of the estate of Wight, of the recovery of the judgment, its date and amount, and that he would have execution issued against the lands which were owned by Wight in his life-time, situated in Cook county. Russell indorsed on the notice an acknowledgment of its service.
On the 5th day of September, 1845, and more than three months after the notice was served, a fifth execution was issued, and was, on the third day of the following December, levied upon lands which embraced the premises in controversy. A sale was made under this levy, on the 24th of June, 1847, at which Scammon, the attorney of plaintiffs in execution, became the purchaser at $8,520. He afterward assigned his certificate of purchase to Ogden and Robbins, and, no redemption having been made, a deed was executed to them by the sheriff on the 22d day of March, 1850, which was duly recorded.
It appears from the evidence that Wight left a will at his death, by which he appointed his wife, Jabez Wight, and George A. Elliott, all of Erie, Pennsylvania, his executors. Mrs. Wight and Elliott both declined to act, and letters testamentary were granted to Jabez Wight. At the August Term, 1845, of the Cook County Court, Russell, as administrator, with the will annexed, presented a petition for the sale of the real estate in Cook county, belonging to Wight’s estate, for the payment of debts. It contained the usual allegations as to the indebtedness of the estate, the want of personal assets for their payment, and a description of the lands sought to be sold, and the widow and heirs of Wight were made parties defendant. ¡Notice of the intended application was given. On the hearing, a guardian ad litem was appointed for the minor defendants, and a decree was rendered licensing a sale of the lands for the purposes specified in the petition. On the 17th day of December, 1846, the administrator sold the lands, and Scammon became the purchaser at $93.16, subject to the judgment in favor of Dundas. He executed a deed to Scammon, who afterward conveyed the title thus acquired to Ogden and Robbins, on the 30th of April, 1847. It is under these sales, that deféndants below derive title, and which they rely upon as a defense.
It is insisted that the Circuit Court of Cook county was not adjourned at the time of Wight’s death, and the judgment against him and in favor of Dundas consequently did not become a lien upon these lands in the life-time of Wight, and that failing to become a lien before his death it never did. Without inquiring whether a lien would attach after the death of a defendant, it is only necessary to determine whether the court did adjourn before his death. There seems to be no question that the court was regularly in session on the 23d of August, the day that the judgment was entered. And it is beyond dispute that it was regularly adjourned until the next day. After that time, regular convening and adjourning orders were entered from day to day, but no judge was present. After the 23d, for the want of a judge, no legal business could have been transacted, and for that reason the court stood adjourned. The judge who opened court might no doubt have adjourned to a specified day, had the business of the court required it, and business might have been regularly resumed at that time. The judge had no power to authorize the ministerial ofiicers of the court to exercise judicial powers, even in opening and adjourning the court. They not having such authority, and the court not having been opened on the 24th by a judge authorized to exercise the jurisdiction of the court, it stood adjourned after the 23d, and that must be regarded as the last day of the term. And the lien of the judgment attached upon these lands from that time. *
The lien having attached to the land, it could only be removed by a satisfaction of the judgment, a release by the creditor, or the efflux of time. The statute has declared (R. S. 301, § 2) that after a judgment has become a lien, and the defendant shall happen to die before execution has issued, the remedy of the plaintiff shall not be delayed or suspended by reason of the nonage of any heir of such defendant; but no execution shall issue upon such judgment, until the expiration of one year after the death of such defendant. It also declares that no other law of the State shall be so construed as to impair or affect the lien of any such judgment. The thirty-seventh section of the same act declares, in such a case, it shall not be necessary to revive the judgment by scire facias against the heirs or representatives of the defendant, before execution shall issue; provided the plaintiff shall give the executor or administrator, if there be -any, at least three months’-notice in writing of the-existence of such judgment, before execution shall issue.
This case comes fully within these provisions. The lien attached to the land before Wight’s death; the requisite notice was given; the execution upon which the levy was made was not sued out until after the expiration of twelve months after the death of Wight. This conferred the power to issue the execution of the 5th of September, 1845, and it authorized the sale- of the premises by the sheriff.
The plaintiff did not lose his lien because an execution was not issued within a year from the date of the judgment. The statute has declared that if the defendant die after the judgment has become a lien and before execution has been issued, that the lien shall not be thereby impaired or affected, but requires the execution to be stayed one year after the death of defendant, and that three months’ notice shall be given to his representatives before it can be issued and proceedings had under it. It cannot then be said -that the lien was impaired before the 3d day of September, 1845, which was the expiration of the year after Wight’s death. And previous to that time, four executions were issued and returned, “no property found.” On the 5th day of September, 1845, one year and two days after Wight’s death, the execution was issued under which the levy was made. This execution was issued within one day of the earliest possible period allowed by law, and was, we think, regular in all respects necessary to preserve the lien.
It is likewise insisted that it was irregular to issue the execution against Wight after his death. The statute does not authorize an execution against the administrator, nor would it be proper that it should, as he has no interest in the real estate of his intestate, nor has he any control over it, for any purpose. And, the heirs not being parties to the record, it would be improper to issue a general execution against them, and thus subject their property, upon which the judgment never became a lien, to the payment of the debt of their ancestor. It would. in such a case, be the better practice to recite the fact of the recovery of the judgment, the death of the defendant, and the notice to the administrator, and then specially command the sheriff that, of the lands owned by the defendant at his death, in his county, he levy the amount of the judgment and costs. But this is only form, and is not material, if the writ is sufficient in substance. And, although this writ was informal, it contained all that was essential, and conferred power on the sheriff to make the sale; and we have no doubt that Scammon acquired title at the sheriff’s sale, and transmitted it by conveyance to his grantees.
It is insisted that the Probate Court failed to observe the requirements of the law, in granting letters of administration, with the will annexed, to Bussell, on Wight’s estate. The Probate Court had jurisdiction of the subject-matter and of the person, and thereby became fully empowered to act by refusing or granting such letters. When they were granted, Bussell thereby became, at the least, an administrator de facto, and, being such, the regularity of his appointment cannot be questioned in a collateral proceeding. On an application to revoke the letters, or on an appeal from the order granting the letters, all of the objections urged against their validity would be properly considered. But they cannot be in a collateral proceeding. In the case of Langworthy’s Heirs v. Baker, 23 Ill. 484" date_filed="1860-01-15" court="Ill." case_name="Unknown Heirs of Langworthy v. Baker">23 Ill. 484, the distinction was taken between a direct and a collateral proceeding, and it was treated as a direct proceeding in that case; and on error it was held, that the law had been violated, and the letters were held to be inoperative. But it was not held that, in an action of ejectment, or other collateral proceeding, an administrator’s deed, made under a decree of court, could not be read in evidence, because the Probate Court had erred in granting him letters. And the other cases referred to in our reports are in conformity to that rule.
Bor has this case any of the elements of Cutts v. Hoskins, 9 Mass. 543" date_filed="1813-03-15" court="Mass." case_name="Cutts v. Haskins">9 Mass. 543, as in that case letters were granted by the Probate Court of one county, while the intestate had died in another, and such action was prohibited by their statute. This was the-ground of that decision; hut we can hardly doubt that a different decision would have been announced had it appeared that proof had been heard, and the Probate Court had determined that the intestate had resided in the county in which, letters'were granted at the time of the death of intestate. But, in the absence of such facts, the decision is unsatisfactory, and seems to be opposed to the principle that, where a court has jurisdiction of the subject-matter and of the parties, its judgment must be held conclusive in all cases, except in a direct proceeding for its reversal.
It is conceded that this was a case which authorized the granting of letters of administration; but it is urged, that, as the will was not sufficiently proved, letters with the will annexed were not authorized, and that they are void. The seventy-eighth section of the chapter regulating wills and intestate estates declares, that, when the probate justice has failed to take sufficient security, the executor or administrator shall, upon proper notice, give additional security, and, in default thereof, the letters shall be revoked, and letters of administration de bonis non granted; and all acts done according to law by the administrator before the letters are revoked are declared to be valid and binding. Other portions of the law have authorized the Probate Court to revoke letters when improperly granted. The seventy-first section declares, that, if letters of administration shall be granted, and a will shall afterward be found, such letters shall be revoked and repealed. The seventy-second section declares that where letters testamentary shall have been granted, and the will shall be afterward set aside, the letters shall be revoked. By the seventy-third section, the Probate Court is also authorized to revoke letters in case the executor or administrator shall become insane, lunatic, or of unsound mind, a habitual drunkard, be convicted of an infamous crime, shall waste the estate, or mismanage the same, or so act as to endanger its safety. The statute has required the probate justice of the peace to take good and sufficient security from executors and administrators; yet, so far from declaring letters issued on insufficient security void, section seventy-eight has only authorized their revocation, and declares legal acts done under them binding.
From the whole tenor of the legislation of our State we are unable to perceive, that, whether the grant of such letters be a judicial or a ministerial act, it was ever designed that, in a proper case for the grant of letters, any mistake, as to their character, should be held to render them, and all acts performed by the executor or administrator, void. Such a policy would be attended with great inconvenience, injury and loss to estates. Persons would be deterred from becoming purchasers at sales of real and personal estate, and debtors would not know whether they could make payment with safety. It can hardly be supposed, that it was designed that, when a case had arisen, authorizing the grant of letters, whether the act be judicial or ministerial, a mistake of the officer, as to whether they should be of the ordinary character, or with the will annexed, whether to one person or to another, or as to the sufficiency of the security, should render all acts performed under them void. But it must have been intended, in such cases, that the letters should be good, and the acts valid, until they should be revoked. Then, whether the will was properly proved or not could not affect the letters until repealed, or the sale of the property by the administrator.
After a careful examination of the entire record in this case, we are unable to perceive any error for which the judgment of the court below should be reversed, and it is, therefore, affirmed.
Judgment affirmed.