Burton v. Perry (146 Ill. 71, 1893)

Mr. Justice Magruder

.delivered the opinion of the Court:

The complainants, Perry and Henderson, file this bill for the partition of forty acres of lánd, and claim to be the owners of an undivided half thereof. The defendants deny the ownership asserted by the complainants, and contend that they are themselves the owners of the whole of the forty acres. Therefore, the first question to he determined is, whether the complainants own any interest in the land, and, if they do, what interest.

It is not denied, that, on February 16, 1836, Isaac Cook, then holding the Government title to eighty acres, of which the tract of forty acres now in controversy is the south half, conveyed an undivided half of said, eighty acres to Asa W. Chambers and Sheldon Benedict. The complainants claim title through a conveyance from Benedict to Chambers and three conveyances from Chambers to themselves.

Chambers and Benedict left Chicago in 1838. Benedict has never been seen or heard of but-once since that time. It is said, that in the year 1848 he made a visit to Chambers while the latter was living in the State of Texas, but, after remaining with Chambers two or three weeks, he disappeared, and all further trace of him has been lost. He paid no taxes upon the property in question after he left Chicago, nor do the records of Cook County where these premises are located, show that he has ever made any conveyance of the land, or instituted any proceeding, or done any act indicating a claim of ownership, since the year 1838.

Chambers, according to his own testimony, was not in Chicago from 1838 to 1872. During a period of more than thirty years his whereabouts were unknown, and were only discovered in the year 1871, or thereabouts, after considerable search by • a party acting for, or in concert with, the complainants. After his disappearance in 1838, he paid no taxes upon the land, nor did he or his grantees thereafter take any steps to assert title thereto until the filing of the bill in this ease in July, 1873.

All the facts, however, in the present record, which tend to show laches by reason of-delay in beginning suit, were before this Court in 1884, and again in 1888. (Perry et al. v. Burton et al. 111 Ill. 138; Same v. Same, 126 id. 599).

The only witness, who testifies that a deed was made by Benedict to Chambers, is Chambers himself. The latter swears that, after leaving Chicago in 1838, he remained about ten months in Georgetown, Vermilion County, Illinois; that he went to Texas in June, 1841, taking Mrs. Chambers with him; that he lived in Navarro County, Texas, from 1843 to 1872, about two miles from a little town called Mt. Pisgah containing 15 or 20 houses, thirteen miles from Corsicana, the principal town of the county, and about 110 miles from Bryant, Brazos County, where the complainants, Perry and Henderson, who are attorneys at law, reside; that he never saw Benedict, after leaving Chicago, until 1848; that, in November of that year, Benedict came to his house in Navarro County “flat broke and afoot,” saying that he came through Galveston, and had been in New Orleans, and New York, and divers places; that he then sold to Chambers all his interest in this land and other lands in Illinois for $200.00, of which $75.00 was paid in cash, and for the balance he took-a saddle horse; that Benedict then made a deed to Chambers of the land; that neither had any papers showing the description, but both remembered the description; that the deed was acknowledged before a justice of the peace, who is dead, and attested by two witnesses, who are both dead; that Benedict then rode away, and Chambers has never seen or heard of him since, or of any of his relatives, if he had any; that Chambers never recorded the deed, but kept it for fourteen years on his place in Texas; that in 1862 he left home and deposited his papers in a trunk in the care of a daughter, then 25 years old; that the deed was lost during his absence, and he has never been able to find it.

The question as to the execution of the deed from Benedict to Chambers was passed upon by this Court in the decision made in 1884. (Perry et al. v. Burton et al. 111 Ill. 138). Counsel for defendants refer to many circumstances brought to light by the evidence taken since the first and second hearings of the cause, which are alleged to demonstrate the falsity of the testimony given by Chambers. We do not deem it necessary, however, to enter upon a discussion of this subject, as we have reached the conclusion for the reasons hereafter stated, that the defendants must he regarded as bona fide purchasers of the one fourth interest formerly held by Benedict without notice of the deed said to have been made by him to Chambers, and consequently are entitled to protection as against the latter deed.

Some time in 1871 or 1872 Chambers conveyed or attempted to convey all his interest in said tract of 80 acres, described as the E. J N. E. J Sec. 20, etc., and in other lands in Illinois, to the complainants, and received therefor the sum of only one hundred dollars. About the same time the complainants agreed with a real estate agent in Chicago to convey to him one half o'f such interest in the land as they should finally recover, upon condition that he should take possession of the property, employ attorneys, perfect the title, and pay all costs, expenses and attorneys’ fees. We agree with counsel for the defendants, that the agreement in question was champertous and void, and could not be enforced as between the parties to it. (Thompson v. Reynolds, 73 Ill. 11; Coleman v. Billings, 89 id. 183). But we do not regard such agreement as material in the consideration of this case, as the present suit is not between the complainants and the agent so employed by them. (Torrence v. Shedd, 112 Ill. 466; 3 Am. and Eng. Encyc. of Law, page 86).

It is not denied by the complainants, that, in the fall of 1844, Isaac Cook was the owner of the other undivided one half of the 80 acres which had not been conveyed in 1836 to Chambers and Benedict. The undivided half so conveyed to Chambers and Benedict was sold for taxes to Cook on November 28, 1842, and the Sheriff issued a tax deed therefor to him on December 9, 1844. It is claimed by the defendants, that Cook, holding under said tax deed and under the deed to him of the other half as color of title, paid all the taxes legally assessed upon the whole tract of 80 acres from 1844 to 1854, inclusive, while the land was vacant and unoccupied. We have heretofore passed upon the question of the payment of taxes by Cook under said tax deed, and have held that the payment of taxes by him during the period aforesaid was not established by proof. (Perry et al. v. Burton et al. 111 Ill. 138). Counsel claim, that there is now new evidence in the record, which shows that Cook did pay the taxes on the undivided half, conveyed to him by the tax deed, for a period of seven successive years between 1844 and 1854. We find no evidence whatever in the record, which shows that the 80 acres were vacant and unoccupied for seven successive years during the period from 1844 to 1854. Cook says nothing upon this subject, and the other witnesses,, to whose testimony we have been referred, speak of the land as it was after 1854. In the absence of proof that the land was vacant and unoccupied, or that Cook was in possession of it during said period of seven years, it is immaterial, so far as the bar of the statute of limitations is concerned, whether the taxes were paid or not; and any discussion of the question, whether the defense based upon the payment of taxes under the tax deed to Cook has, or has not9 become res adjudícala under the former decisions of this Court8 would be unnecessary and fruitless.

In 1854 Cook sold the eighty acres to John W. Einnell and Richard C. Wintersmith for $4000.00, and afterwards, by warranty deed dated July 9, 1857, conveyed to them the 80 acres so sold. On January 9, 1856, each undivided one half of said 80 acres, being the E. N. E. J sec. 20, etc., was separately sold for the taxes of 1855 to Frederick R. Wilson, and in pursuance of such sale the Sheriff afterwards executed a tax deed, dated August 23, 1859, to Wilson conveying to him the whole of the eighty acres. Afterwards by deed dated April 26, 1865, Wilson conveyed the S. of the E. J N. E. J sec. 20, etc., being the 40 aerés in controversy in this suit, to Einnell, and, by deed of the same date, conveyed the N. J of said E. J, etc., to Wintersmith. By way of further effecting a partition of the 80 acres between them, Wintersmith or his grantees, by deed dated April 24, 1869, conveyed to Einnell said south 40 acres, and, by deed of the same date, Einnell eonvejred said north 40 acres to Wintersmith or his grantees.

On August 28, 1869, Isaac Cook and John W.'Einnell, and Henry A. Montgomery and Abner Taylor, the two latter being grantees through mesne conveyances from said Wintersmith, filed a bill in ’the Superior Court of Chicago against The Unknown Heirs and Devisees of Asa W. Chambers, deceased, and The Unknown Heirs and Devisees of Sheldon Benedict, deceased, as defendants. This bill set up, that Cook conveyed an undivided half of E. N. E. ¿ of said section 20 to Chambers' and Benedict, as above stated; that, by deed dated November 10, 1843, Norman B. Judd had deeded the other undivided half of said 80 acres to said Cook; that in November, 1843, Chambers and Benedict each owed more than $1000.00 to said Cook, and, in consideration of such indebtedness, executed an agreement in writing for the conveyance to him of their undivided half of said 80 acres; that the .consideration therefor was the payment of said sums due from them respectively; that said contract had been lost or mislaid and had never been assigned by Cook; that neither Chambers nor Benedict nor either of them had ever conveyed, any part of said land to said Cook, or to any other person. The bill recites the sale for taxes in 1842, the tax deed to Cook in 1844, the exercise of control over the 80 acres by Cook from 1843 to 1857, the payment of taxes by him from 1842 to 1854, the sale for taxes in 1856, the tax deed to Wilson in 1859, the deed from Cook to Finnell and Wintersmith in 1857, the deeds in 1865 from Wilson to Finnell of the south 40 acres and to Wintersmith of the north 40 acres, the partition deeds in 1869 from the grantees of Wintersmith to Finnell of the south 40 acres and from the latter to the former of the north 40 acres; the bill alleges, that Chambers and Benedict had died intestate, and unmarried, and without children, and had been dead many years, and prays for a decree compelling the defendants to convey the S. J of said E. J to Finnell and the N. j- thereof to Montgomery and Taylor, and, in default thereof, that a master make such conveyance, and for summons. Appended to the bill was an affidavit, that the names of the heirs and devisees of Asa W. Chambers, deceased, and of the heirs and devisees of Sheldon Benedict, deceased, were unknown. Summons dated August 28,1869, was issued to Cook County against the Unknown Heirs and Devisees of Asa W. Chambers, deceased, and the Unknown Heirs and Devisees of Sheldon Benedict, deceased, returnable on the first Monday of October, 1869, and was returned “not found.” Proof of publication of notice to said defendants was filed November 29, 1869, the publisher’s certificate showing publication for four successive weeks—four times in a certain newspaper—first on August 28 and last on September 18,1869. On November 29,1869, the Court entered an order, finding, that it appeared from proof filed, that publication had been made in the Chicago Evening Post, a newspaper published in Chicago, containing notice of the pendency of said suit, etc., “the first of which publications was more than sixty days before the commencement of this term of court, ” etc., and ordering that default be taken against the defendants, and that the allegations of the bill be taken as confessed by them, and that the cause be referred to Ira Scott, Master in Chancery, to take proofs and report. On May 21, 1870, the Master made his report returning therewith the deeds named in the bill, or certified copies thereof, and also the deposition of Cook, wherein he testified that Chambers and Benedict were dead and had been dead for 15 or 20 years, that neither of them was ever married; that he had been unable to find any of their relatives living; that said Cook had re-acquired the title to said 80 acres from said Chambers and Benedict by contract or deed which he had been unable to find, and that no one had ever claimed said land since its purchase by Cook from Judd, and Chambers and Benedict, except Cook’s grantees and those claiming under them. On May 21, 1870, the court rendered a decree, wherein, after reciting that the cause came on to be heard upon the bill, exhibits and testimony, and that the defendants, The Unknown Heirs and Devisees of Asa W. Chambers, deceased, and The Unknown Heirs and Devisees of Sheldon Benedict, deceased, “although duly notified and warned,” failed to appear and plead, it was ordered that the bill be taken for confessed, and, after finding that the material averments thereof were fully proven, it was further decreed, that the complainants therein be quieted in their title to and possession of said 80 acres, and that the defendants “and all others” be forever enjoined from setting up any claim or title to said premises, or any part thereof, adverse to the claim and title of the respective complainants therein, and that the defendants within five days execute a deed to complainants, Montgomery and Taylor, conveying to them said N. -§-, and a deed to the complainant, Finnell, conveying to him said S. J, etc., and, in default of their so doing, that said Master make said' conveyances for said defendants.

In pursuance of said decree, Ira Scott, Master of said Court, executed a deed, dated June 14, 1870, and recorded June 23, 1870, conveying the S. j- of the E. J- of the H. E. J of said section 20, etc., to said John W. Finnell; and also, by deed of same date and recorded on June 23, 1870, conveyed the N. j- of said E. -L, etc., to said Montgomery and Taylor.

On February 23, 1871, Finnell sold said south 40 acres to George G. Street for $12,000.00, and conveyed the same to him by warranty deed of that date, which was recorded before October 9, 1871. Street paid $3000.00 in cash upon said purchase, and, to secure the remaining $9000.00 of the purchase money, executed to Samuel M. Moore, as trustee, four trust deeds, dated February 21, 1871, and recorded March 23, 1871, one on the N. E. 10 acres of said south 40 acres to secure a note for $2250.00 payable in one year, one on the N. W. 10 acres thereof to secure a note for $2250.00 payable in two yeg,rs, one on the S. E. 10 acres to secure a note for $2250.00 payable in 3 years, and one on the S. W. 10 acres to secure 3 notes, each for $750.00, payable respectively in 1, 2 and 3 years, all said notes signed by said Street and payable to the order of said Finnell.

On March 1, 1871, Street sold said 40 acres to William Hansbrough for $18,000.00, and conveyed the same to him by a warrranty deed, dated March 1, 1871, and recorded March 31, 1871, subject to said incumbrances of $9000.00, which said Hansbrough assumed and agreed to pay. Hansbrough bought the property for himself and George W. Burton, and, by warranty deed dated January 30, 1872, and recorded January 8, 1873, conveyed the same for an expressed consideration of $18,000.00 to said Burton, who also assumed the payment of said incumbrances.

On October 3, 1871, before the maturity of said notes, Charles G. Wallace bought all of said notes and trust deeds from said Finnell, and paid therefor $8600.00 in money. Burton paid the tw§ notes payable in one year, one for $2250.00 and one for $750-.00, and said N. E. 10 acres have been released from the lien of the trust deed thereon.

In 1877 Burton executed upon the 40 acres a mortgage which was assigned in.1878 to the Louisville Banking Company, one of the appellants herein. In 1878 Burton became bankrupt and an assignee in bankruptcy of his estate was appointed. During this litigation the property has been sold for taxes, and John J. Mitchell, 'also one of the- appellants, holds tax deeds upon the property. For the present, we postpone the consideration of all questions as to the bankruptcy of Burton, and as to the rights of The Louisville Banking Company, and of Mitchell.

Wallace, one of the defendants below and one of the appellants here, is the owner of the unpaid notes secured by three of said trust deeds, together with the interest thereon.. He claims that he bought the same in good faith relying upon the validity of said decree of May 21, 1870, and of the master’s deed made in pursuance thereof. Burton and Hansbrough, defendants below and appellants here, claim that they and their grantor, Street, bought the 40 acres in good faith relying upon said decree, arid that they are bona fide purchasers for value without notice of the claim of complainants, or of their grantor, Chambers.

We are thus brought to the consideration of the question, whether parties purchasing in good faith and in reliance upon the validity of such a proceeding against Unknown Heirs and Devisees as is above set forth, are entitled to be protected in their purchases.

In support of their contention that the Superior Court of Chicago acquired jurisdiction in the proceeding of 1869 over The Unknown Heirs and Devisees of Asa W. Chainbers, deceased, counsel for appellants assert, in the first place, that the Chambers, from whom the complainants derive their title, was an impostor, and is not sufficiently identified by the evidence as being the same Asa W. Chambers, who lived in Chicago in 1836, to overcome the presumption of death arising from absence for several periods of seven years each, and to overcome the judicial finding of the fact of his death made in 1869 and 1870, as above set forth. Undoubtedly there are some circumstances, which leave the mind in doubt upon this question of identity. John C. Haines and Fernando Jones swear, that they knew Chambers and Benedict well when the latter were in Chicago in 1836 and 1838; that Chambers was a young man not more than 25 years old, and was an unmarried man; that he had no family and slept in his store, etc. The grantor of complainants was in Chicago in 1872 or 1873, and gave his deposition in that city in September, 1874. He seems to have -kept aloof from all of the old citizens, except one, who knew the Chambers of 1836 and 1838. His board, while "he was here, was paid by the real estate agent already ^mentioned. He states, that he was engaged at that time in peddling blueing for washing purposes. He says that, while he lived in Chicago, he had a wife and children, and that one of his daughters was married in Danville before he went to Texas. Three or four witnesses swear that the reputation of the Chambers, who lived in Texas in 1849 and 1862, for truth and veracity was bad, and that they would not believe him under oath. Several testify, that Chambers of Texas signed his name Asa Chambers, and was not known as Asa W. Chambers. There are many inconsistencies in the account, which the grantor of complainants gives of himself and of the transactions of which he speaks. If this matter depended upon his testimony alone, its inherent improbability, and its contradiction by Haines and Jones, would leave his identity with the original grantee of Cook unproven. But Haines and Jones did not see„him when he was in Chicago in 1872 and 1874. On the other hand, Mark Beaubien, an old settler in Cook County, swears that he knew the Chambers who was here in 1836, and that the Chambers here in 1874 was the same man. The Chambers, who testified in this case, boarded with Beaubien in 1874, and the latter swears, that he recognized him .as the man who had formerly boarded with him in 1836 or 1837. While there is some evidence tending to show that Beaubien was a very credulous man, there is none that successfully impeaches his truthfulness. We think, upon the whole, that his testimony must be held to determine the question of identity in favor of the position taken by the complainants upon this subject.

But appellants contend, in the second place, that, even if the grantor of complainants be identified as the grantee of Cook, yet the rights of Chambers were cut off as against them by the decree of 1870. Their position is, that the Superior Court of Chicago was a court of general jurisdiction; that it had jurisdiction of the subject matter; that absence from the domicile for a period of seven years without being heard from creates a presumption of death; that Chambers had been absent and not heard from for thirty one years when the suit of 1869 was begun; that the Court made a decree upon proofs taken finding him to be dead; that proper publication was made as to his heirs; that complainants were bona fide purchasers for value without notice, and were not bound to look beyond the decree when executed by a master’s deed, inasmuch as the facts necessary to give jurisdiction appeared upon the face of the proceedings; that the decree cannot be attacked collaterally, etc. There is force in these contentions when applied to the Unknown Heirs and Devisees of Sheldon Benedict, deceased, as will be seen hereafter, but they have no application to Chambers. According to the testimony of Beaubien, as it appears in this record, Chambers was alive when the suit was begun in 1869, and when the decree of 1870 was rendered, and when the present bill was filed in 1873. He was not a party to the suit of 1869. The persons made parties as his Unknown Heirs and Devisees were not then in existence. There were no such persons. The Court had no jurisdiction over him, and the decree was absolutely void as to his one fourth interest obtained from Cook in 1836. In authorizing the heirs of a deceased person, who has been interested in the subject matter, to be made parties under the name of Unknown Heirs when their names are unknown, the statute presupposes that the death of such person is an established fact; it was never designed to cut off the known rights of such a person while in life, even as against innocent purchasers for value; it has reference to deceased persons and not to live persons.

In Thomas v. The People, 107 Ill. 517, where the proceeds of a sale in partition came .to the hands of a master in chancery, and, prior thereto, administration had been granted upon the estate of one of the heirs upon the hypothesis that he was dead because he had been absent and not heard from for more than seven years, the master paid to the administrator the portion of the proceeds belonging to such absent heir; afterwards the person supposed to be dead turned out to be alive; and it was held, that the grant of administration and all acts done thereunder were void, that the probate court had no jurisdiction except over the estates of deceased persons, that the money was improperly paid out, and that the interested party, who had returned alive, was entitled to recover back his money from the master. We think that the doctrine of the Thomas case is applicable to the ease at bar so far as Chambers is concerned. We are, therefore, of the" opinion, that the decree of May 21, 1870, and the master’s deed of June 14, 1870, did not have the effect of depriving Chambers of the one fourth interest, shown by the records to have been conveyed to him in 1836.

The proceeding of 1869 must be regarded as a proceeding against the Unknown Heirs and Devisees of Sheldon Benedict alone, and the question arises whether it was valid as to them. There is no evidence in the record, that Benedict was alive when that proceeding was instituted, or when the decree therein was entered. He had been absent from Cook County and had not been heard from in that county for 31 years. If he was alive in 1848, he had not been heard from ih 1869 for 21 years. Acting upon the presumption of his death and upon the evidence of Cook that he was dead, the decree of 1870 found the fact of his death to be established. The complainants have introduced no proof to contradict the truth of such finding. In their original bill filed in this cause on July 18,1873, they alleged that Benedict was dead, and, after filing the affidavit required by the statute, made his Unknown Heirs and Devisees parties defendant.

We see no reason why the court, did not obtain jurisdiction over the Unknown Heirs and Devisees of Sheldon Benedict, deceased, by the proceeding of 1869 as above set forth. Inasmuch as said heirs and devisees were notified by publication only, they had a right to come in at any time within three years after the entry of the decree, and open it, and answer the bill. It is true, that such a decree does not become final until after the-lapse of three years, and that parties, purchasing during that time, do so subject to the contingency that the decree may be set aside. (Lyon v. Robbins, 46 Ill. 276; Southern Bank of St. Louis v. Humphreys, 47 id. 227). But when the three years have passed and no steps have been taken by the defendants to open it, it has the same effect as though there had been personal service. (Caswell v. Caswell, 120 Ill. 377). Although, in the present case, Street and Hansbrough and Burton and Wallace acquired their interests within three years after the entry of the decree of May 21, 1870, yet none of the heirs or devisees of Benedict appeared between that date and May 21, 1873, for the purpose of opening the decree and answering the bill. The decree became final on May 21, 1873, and the rights of said appellants became thereby fixed and relieved of their conditional character. The bill of the complainants in this case, not having been filed until July 18, 1873, was not filed until more than three years had passed not only after the entry of the decree, but after the execution and recording of the Master’s deed to Binnell. It makes no difference, that said bill was filed within less than two months after May 21, 1873. The evidence tends to show, that the efforts made by the agent of the complainants to find Chambers and get a conveyance from him were prompted by the beginning of the chancery suit in 1869, and by the publication of the notice to Unknown Heirs, etc.

Neither Finnell, nor the above named appellants who hold under him, had any notice whatever that Benedict had made a deed to Chambers until the filing of the original bill in this cause. The allegations of that bill made it known on July 18, 1873, for the first time, that such a deed, of which the records gave no information, had been executed and lost. The first two deeds made by Chambers to the complainants gave no notice of the execution of a deed by Benedict to Chambers. They both bear date November 20, 1871; one was recorded on January 30, 1872, and the other on February 16, 1872. By the former, Chambers conveyed to Perry and Henderson “all of the equal and undivided one half part,” not of the N. J of the N. E. etc., but “of the N. E. ^ of section 20,” etc., and omitted to state in what county and State said N. E. J was located; by the latter, Chambers conveyed to Perry and Henderson “an undivided one half part of all the pieces, parcels or lots of land which I own or have any title to” in Cook County, or in any part of Illinois, but failed therein to specifically describe any particular land. The third deed made by Chambers to Perry and Henderson, which recites that it is made to correct the mistake in the first deed of omitting the words “In Cook County and State of Illinois,” bears date July 5, 1873, and, although it is referred to in the original bill in connection with the other two deeds, it was not recorded until September 9, 1890.

Which title to the undivided one fourth interest, conveyed by Cook to Benedict in 1836, is the better title: that of appellants, derived from Finnell through his Master’s deed of June 14, 1870, and purchased in good faith for valuable consideration without notice of any adverse interest, or that of eomplainants based upon the lost deed of Benédict to Chambers brought to light for the first time on July 18, 1873 ?

The statute provides, that “all deeds, mortgages and other instruments of writing which are (required) authorized to be recorded, shall take effect and be in force from and after filing the same for record, and not before, as to all creditors and subsequent purchasers without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers, without notice, until the same shall be filed for record. ” If Benedict had been alive in June, 1873, and Finnell had then purchased his one fourth interest from him for a valuable consideration, and in good faith, and without notice of any previous conveyance thereof, and had recorded his deed on June 23, 1873, Finnell would certainly have held the interest as against the unrecorded and lost deed previously made by Benedict to Chambers in 1848, and not heard of by Finnell until July 18, 1873. Although the legal title passes by the first deed which is not recorded, yet, by force of the recording laws, it is postponed in favor of a subsequent deed to a bona fide purchaser, which is recorded. We have held, that this rule applies as well to bona fide subsequent purchasers from heirs, as to purchasers from the ancestor. In Kennedy v. Northup, 15 Ill. 148, we said: “During the lifetime of the grantor in an unrecorded deed, the apparent title is in him; and he who purchases in good faith that apparent title, it is conceded on all hands, is protected by the statute. After the death of such original grantor, the apparent legal title is in the heir, and the policy of the law, which is to make patent all legal titles to land, so far as practicable, that strangers may safely purchase, equally requires that the bona fide purchaser from the heir should be protected.” If, therefore, Finnell had purchased said interest in good faith from the heirs of Benedict in June, 1873, and had recorded his deed in June, 1873, he would have been protected against the unrecorded deed made in 1848. But when such heirs are unknown, why should not a subsequent purchaser, who acquires their interests in good faith and without notice through a statutory proceeding against Unknown Heirs, be equally protected against the unrecorded deed? A deed from the heirs themselves no more effectually disposes of their interests, than a deed executed for them by a master in chancery, under the orders of a court which has acquired jurisdiction over them. It has been held that the subsequent purchasers, who-are protected against unrecorded conveyances, include purchasers at judicial.sales as well as other sales. (Webber v. Clark, 136 Ill. 256). In principle and reason, these appellants, as purchasers from the grantee in the master’s deed executed under a judicial proceeding, occupy a position somewhat similar to that of the purchaser at a judicial sale.

Section 7 of the Chancery Act is as follows: “In all suits' in chancery and suits to obtain title to lands, in any of the courts of this State, if there be persons interested in the same whose names are unknown, it shall be lawful to make such persons parties to such suits or proceedings by the name and description of unknown owners or unknown heirs or devisees of any deceased person, who may have been interested in the subject matter of the suit previous to his or her death; but in all such cases an affidavit shall be filed by the party desiring to make any unknown person a party, stating that the names of such persons are unknown. The process shall be issued against all parties by the name and description given as aforesaid, and notice given by publication, as required by this Act, shall be sufficient to authorize the court to hear and determine the suit as though all the parties had been sued by their proper-names.” (1 Starr & Cur. Stat. page 395). Section 43 of the same Act is as follows: “All decrees, orders, judgments and proceedings made or had with respect to unknown persons shall have the same effect, and be as binding and conclusive upon them, as though such suit or proceeding had been instituted against them by their proper names.” (Idem, page 412).

The statute requires that the deceased person should be one, who was interested in the subject matter of the suit previous to his death. (Pile v. McBratney, 15 Ill. 314). The records showed, when the suit of 1869 was begun, that Benedict was the only person who had been interested in the one undivided fourth conveyed to him in 1836, except those holding tax titles. There was" nothing to inform the complainants in the suit, that Chambers had any interest in such undivided one fourth, or that there were unknown persons interested therein other than Benedict’s heirs. In Pile v. McBratney, supra, the nature and effect of a proceeding precisely like the suit of 1869, were fully discussed, and it was there said: “The court having acquired jurisdiction of the case and passed upon the rights of the parties, the decree was binding on the heirs of Mastín. The deed of the commissioner transferred all their interest in the land.” When all persons known to have any interest in the land, or shown by the records to have any interest, are made parties, the proceeding would be useless, if, after it has become final, persons claiming to hold secret interests, unrecorded and unsuspected even, can come in and set the decree aside. Such a doctrine would open wide the door to fraud and perjury. Speculators would be tempted to swear to lost deeds or other instruments, as having been executed to them by parties to such "proceedings, for the express purpose of declaring the decree invalid for want of jurisdiction over themselves. Thus the very object of the statute would be defeated. While the decree of May 21, 1870, was invalid so far as it operated to deprive Chambers of the one fourth interest shown by the records to have been conveyed to him in 1836, we cannot regard it as invalid, so far as it affected the secret interest claimed to have been obtained by him through the lost deed of 1848. The apparent title to the latter interest stood in Benedict dr his heirs. “Where a deed is not recorded, the title is apparently still in the grantor, and the law authorizes purchasers who are ignorant of the conveyance, to deal with him as the real owner. In case of his death, the heir becomes the apparent owner of the legal title; and it is equally as important, and equally as just, that the public may be allowed to deal with him as the real owner.” (Kennedy v. Northup, supra). When the facts authorize a statutory proceeding against the unknown heirs holding the apparent title, the prosecution of such a proceeding to the end, and the securement of a title thereunder, amount to a dealing with such heirs as the real owners, just as much as would be a purchase from heirs whose names are known.

The bill of 1869 was to a large extent a bill for the specific performance of a contract to convey land. Cook, and his grantees, alleged therein that Chambers and Benedict executed a written agreement in 1843 to convey their interests in the 80 acres to Cook. The court found that allegation to be true, and ordered the defendants to make deeds to carry out the agreement, or, upon their default, that the master do so. Here was a judicial finding, that Cook acquired an interest in Benedict’s one fourth before the deed of 1848 was made. The appellants, purchasing in good faith and without notice, had a right to rely upon that decree and the deed thereunder as passing Benedict’s title. The court had jurisdiction of the parties, the Unknown Heirs of Benedict, deceased, and of the subject matter, the specific performance of a contract to convey land.

Counsel for appellees charge, that the proceeding of 1869 was a fraud perpetrated upon the court by Cook, and that no such contract of sale as is therein set up ever existed. The proof does not sustain this charge. Chambers, it is true, swears that he owed Cook nothing when he left here in 1838, and that he thinks Benedict owed him nothing. Cook, however, swore to the contrary in the suit of 1869, and the court found his evidence to be true; and not only so, but he swears to the same thing in his testimony taken in this ease in 1882. But if it were true', that Cook was guilty of the fraud charged against him, it was not such a fraud as goes to the jurisdiction of the court rendering the decree of 1870, and, therefore, is unavailable in a collateral attack upon the proceeding of 1869, as against innocent purchasers from the grantee in the master’s deed. There are two kinds of- fraud as applied to this subject—fraud in obtaining a decree by false evidence, and fraud which gives a court colorable 'jurisdiction over the defendant’s person. In case of a fraud of the former kind, a decree cannot be impeached in a separate and independent proceeding, though it is otherwise in the case of a fraud of the latter kind. (Caswell v. Caswell, 120 Ill. 377).

Counsel for appellees contend that the contract set up in the bill of 1869 was a joint contract for the conveyance of an undivided one half of the 80 acres by Chambers and Benedict together, and that, when jurisdiction over Chambers failed, there was no jurisdiction to enforce the contract against Benedict alone for the conveyance of his one fourth interest. We do not concur in this position. The deed made by Cook in 1836 conveyed to Benedict one fourth and to Chambers one fourth, and each could perform the contract as to his own interest only, and not as to the interest of the other. Hence, we see no reason why the master’s deed to Finnell did not pass Benedict’s one fourth, though it failed to pass the one fourth belonging to Chambers. Freeman in his work on Co-tenancy and Partition (sec. 209) says: “An agreement to convey entered into by several co-tenants, by which they stipulate that they will give a good and sufficient warranty deed, etc., does not require either to warrant the title of the others. It is complied with, if each makes a separate deed of his moiety containing the stipulate!! covenant, or if all join in a deed, in which each grantor warrants his share, but not that of his co-grantor.” (Coe v. Harahan, 8 Gray, 198).

Viewing the contract as one between Benedict, vendor, and •Cook, vendee, for the sale of one fourth of the land, and viewing the bill of 1869 as a bill brought by the vendee against the vendor for the specific performance of a contract made in 1843, we cannot see how the proceeding can be void as to the vendor’s interest, merely because a subsequent grantee of the vendor, to whom the latter conveyed in 1848, was not made a party, it being true that the original vendee filing the bill knew nothing about the conveyance to such second vendee. The bill alleged, that Benedict had not conveyed any part of his interest in said land to any person, and the decree found that allegation to be true. The appellants, as bona fide purchasers from the master’s grantee, had a right to rely upon the correctness of the finding. In case of a common bill for the specific performance of a contract of sale of real estate, the only proper parties in general are the parties to the contract itself. (Story’s Eq. Pl. sec. 226 b; Gibbs v. Blackwell, 37 Ill. 191). In a case before Shadwell, V. C., where the vendor sold the same property twice over, and the bill was brought by the first purchaser against the vendor and the second purchaser, it was dismissed (without costs) as against the latter, though specific performance was decreed against the original contractor ; this was affirmed by Lord Lyndhurst, etc. (Fry on Spec. Perf.—3d ed.—sec. 144).

Counsel for appellees contend that all questions as to the chancery suit of 1869 are res adjudícala under the former decisions of this Court made in this cause. We do not think that such is the effect of said decisions. The case was first tried before the Superior Court of Cook County in 1883. Upon the hearing then had, the Superior Court dismissed the bill of the complainants for want of equity. An appeal was taken to this Court, and, in an opinion filed on September 27, 1884, we reversed said decree of dismissal, and remanded the cause generally without directions. (111 Ill. 138). The case was again tried before the Superior Court in May, 1887, and a decree was entered by that court on August 2, 1887, again dismissing the bill of the complainants for want of equity. A second appeal was taken to this Court, and, in an opinion filed November 15, 1888, we reversed the second decree of dismissal, and again remanded the cause without directions. (126 Ill. 599).

An examination of the opinions of 1884 and 1888 will show, that there was no discussion in regard to the proceeding of 1869, and not even a reference to it. The questions of law and the questions of fact there discussed were other than those which relate to the suit begun in 1869 and the decree therein, entered and the master’s deed executed in pursuance thereof. When the opinion of this Court directs the decree of the Circuit Court to be reversed and the cause to be remanded without directions, what is said in such opinion in regard to the weight of evidence must be understood as applying only to the facts disclosed in the record then under consideration; and only the legal principles therein announced are binding upon the inferior Court. (Shinn v. Shinn, 15 Brad. 141). In such case, it by no means follows, that other facts may not be proved within the principles announced, or not inconsistent therewith, or that amendments may not be made which obviate objections to granting the relief sought, or to the allowance of a defense interposed. [Cable v. Ellis, 120 Ill. 136; Manf. Co. v. Wire Fence Co. 119 id. 30; Green v. City of Springfield, 130 id. 515.)

It is true, that some reference was made to the suit of 1869 in the original pleadings. But since the cause was last remanded, new pleadings have been filed and the old pleadings have been amended by both sides, and new and more extended averments hav’e been therein made as to said suit. It appears clearly from the evidence of three witnesses, Finnell, Browning and Jones, and from former briefs of counsel as testified to by the counsel for appellees, that no proper and legitimate evidence as to said suit was, or could have been introduced upon the hearings of 1883 and 1887. Neither party then had an abstract of title, made in the ordinary course of business before the destruction of the records in Cook County by the great fire of October, 1871, which showed fully all the proceedings in said suit. In 1887 the legislature passed an Act amending what is known as the Burnt Records Act. Said Amendatory Act went into force on July 1, 1887, and it was not until after it went into force that the defendants were able to introduce a letter press copy, and extracts and minutes from the destroyed records in the possession of abstract makers, showing the return of the summons, and the publication of notice against Unknown Owners, and other facts in said suit of 1869. Without the evidence-made competent by the Act of 1887, there was no way of proving that the Court acquired jurisdiction in said suit over the Unknown Heirs of Benedict.

In addition to this, the complainants, Berry and Henderson, upon the reinstatement of the cause in the lower court after the reversal of 1888, not only filed in May, 1889, a supplemental bill referring to the previous pleadings in the cause and making new parties, but as late as November 20, 1890, they filed an amended supplemental bill, attacking the validity of the proceeding of 1869 upon specific grounds, and setting up reasons why they entered no motion therein during the three years after the rendition of' the decree of May, 1870, and also giving reasons, why the defendants should not be allowed to rely upon the same for protection to themselves as bona fide purchasers. Answers were filed by the defendants setting up their reliance upon said suit. The amended supplemental bill of November 20,1890, and the answers thereto made a direct issue upon the validity of the proceeding of 1869; and new evidence, never before 'brought forward, was introduced in support of this issue. Having filed said amended supplemental bill, the appellees are estopped from claiming that the issue thereby tendered cannot now be considered.

For the reasons hereinbefore set forth, we are of the opinion that the appellants, holding under Finnell, the grantee in said master’s deed, have obtained good title to Benedict’s one fourth interest, as against Chambers, the grantee in the unrecorded deed of 1848. It follows, that the complainants were only entitled to be regarded as owners of an undivided one fourth part of said south 40 acres; and, therefore, the decree of the Court below, holding them to be the owners of an undivided one half part thereof, is erroneous.

The other questions in the ease have reference to the rights of the defendants, as among themselves, in the remaining three fourths of the tract after awarding one fourth thereof to Perry and Henderson.

As to the Wallace notes and trust deeds. Wallace has filed cross-bills asking for a foreclosure of the incumbrances held by him. The court below found, that the legal title to the one half not belonging to the complainants was vested in The Louisville Banking Company in trust for Burton, as hereinafter explained; and that, as one half of the $12,000.00 of purchase money agreed to be paid by Street to Finnell had been paid as above stated, and the other half with interest thereon was represented by the notes specified in the cross-bill and owned by Wallace, and as Finnell conveyed the whole 40 acres to Street with full covenants of warranty, but in fact thereby conveyed the title to only one half of said property, therefore said Wallace could not enforce his trust deeds against the undivided half so decreed to be held by the company as trustee, etc., and said trust deeds were void, as against the rights of Burton and .Hansbrough and said Company, by reason of such failure of title to one half of said land; and the court decreed, not only that the half held by it to be the property of complainants was free from the lien of said trust deeds, but that said Wallace had no claim whatever upon any portion of said tract of 40 acres. Burton and Hansbrough elected to assert their equities against Wallace. Although one of the errors assigned by Wallace is, that the court below refused to enforce the lien of his trust deeds, yet his counsel do not present any argument in this court against the finding of the decree in this respect. Hence, we conclude that they have abandoned their assignment of error. The deeds from Finnell to Street, and from Street to Hansbrough, and from Hansbrough to Burton, all contained full covenants of warranty. If the grantees had paid one half the purchase money, and received title to only one half the land, they could certainly set up the failure of the warranty as to the other half of the land, as a bar to the enforcement by Finnell of a suit to foreclose the notes and trust deeds given for the other half of the purchase money. As Wallace, purchaser of the notes from Finnell, is seeking to enforce them by foreclosure in a court of equity, said grantees could set up the same defense against him as against Finnell, the original payee. We are, therefore, inclined to think, that the decree was correct in this particular, upon the hypothesis that the grantees of Finnell had lost title to one half of the land. As, however, we hold that the title to one fourth only of the tract has failed, Wallace is entitled to enforce his notes and trust deeds to the amount of $3000.00, with interest, according to the terms of the notes. To the extent thus indicated the decree below is erroneous.

As to the interest of the Louisville Banking Company. The controversy between the Louisville Banking Company and Burton is, whether Burton still owns the equity of redemption subject to the Company’s mortgage, or whether the Company is the owner of the fee of the property to the exclusion of any right to redeem on the part of Burton. The determination of this question requires a statement of the facts, out of which the controversy grows.

On January 15, 1877, Burton and wife of Jefferson County, Kentucky, executed to it. K. White, of the same county, a mortgage upon said south 40 acres, and 80 acres of land in Morgan County, Illinois, to secure three notes for $6000.00, $4500.00 and $1500.00 respectively, payable to the Louisville Banking Company, “and all renewals or extensions of the same in whole or in part, and save the said White who is endorser and security thereon from all loss, cost or damage; ” the mortgage containing a provision that, “if, during the time said White holds the title to the said premises, he. should be compelled to pay taxes- or assessments or other sums on account of being title holder thereof, the same, with interest and costs, shall constitute a lien upon the premises aforesaid and must be paid by said Burton before he can require reconveyance of said premises.” This mortgage was recorded in Cook County on January 18, 1877, and in Morgan County on February 19, 1877. Afterwards, by a written instrument of transfer, dated August 8, 1878, and signed by both Burton and White, the said Burton and White assigned to the Louisville Banking Company the full benefit of all their interest, right and title in and to said mortgage, and therein agreed that said Banking Company should be and was thereby substituted to all the rights then held by said White under said mortgage, “the same,” as is stated in said written instrument, “having been made for the security of certain debts named therein, and are in a supplementary paper of date 24th day of .October, 1877, and to indemnify the said White as. the surety of said Burton in said debts owing by said Burton to said Banking Company, and we hereby agree to make all other and further transfers, assignments and writings, as may be necessary to carry into full effect the true intent and meaning hereof.” The amount of the indebtedness named in said mortgage was thereafter reduced, and new notes were executed to said Banking Company by Burton and White in place of said three notes, towit: one for $4500.00, dated January 11, 1878, and one for $5970.00, dated April 24, 1878, both payable four months after date to the order of said Company, the latter reciting upon its face a pledge by Burton, as security therefor of two notes against P. G-. Kelsey for $1219.00 and $1236.74, and one note against Kelsey and Giles for $1196.74, etc. It appears from a credit on the note for $4500.00, that there was pledged, as collateral security therefor, a claim against one R. C. Kerr, upon which $1171.50 was realized on May 18, 1881.

Neither the mortgage aforesaid, nor the assignment thereof, was under seal, hut Burton has never contested the same, nor denied his liability thereon. On August 26,1878, Burtofiled his petition in bankruptcy in the United States District Court at Louisville, Kentucky, and was adjudged a bankrupt on August 28, 1878; on September 13, 1878, the creditors met and selected W. W. Gardner, as assignee; and, on the same day, the register in bankruptcy made an assignment to said assignee of all the property and effects of the bankrupt. On April 24, 1879, Burton was discharged from bankruptcy upon his own application, and upon his filing the assent in writing of one fourth in number and one third in value of his creditors to whom he was liable as principal debtor, and who had filed their claims. On June 26, 1880, Gardner was discharged as assignee of the bankrupt estate. His final accounts were filed on June 26, 1880, and found to be correct, and, in his sworn report filed with the register on that day, he says: “The bankrupt sets forth in his schedule, filed in this court, that he was the owner of a large amount of real estate lying in various States, all of which appears to be encumbered largely in excess of its value, and is beyond the control of this assignee. * * * This assignee is of the opinion, that in no event can there be anything realized from the estate for the unsecured creditors. Hence he asks that his accounts be audited, and that he be discharged from all further liability on account of said trust.”

Gardner died in November, 1882, more than two years after his discharge as assignee. But it appears that an attorney in Louisville went before said District Court on December 15, 1882, and, upon his motion and announcement of the death of Gardner, an order was entered, “that Harry Stucky be and he is hereby appointed assignee in bankruptcy of the estate of” George W. Burton. The records and files of the said District Court show nothing further as to said Stucky except the motion and order above named. No order was ever entered directing said Stucky to make-sale of any of the property of the bankrupt, or confirming any such sale after it was made. By deed, dated January 14, 1884, and recorded January 21, 1884, Stucky, as assignee of Burton, and Burton and wife, united in a deed conveying said 40 acres in Cook County, and said_ 80 acres in Morgan County, to the Louisville Banking Company, reciting therein the bankruptcy of Burton, the appointment of Gardner and assignment to him by the register and his death, and the appointment of Stucky, and reciting further that all the right, title and interest of Gardner, as assignee, became vested in Stucky, as assignee; that Stucky had advertised notice of sale for three weeks in a Louisville paper, and, on January 14, 1884, had offered said premises for sale at public auction at the court house door in Louisville, and that said Company had purchased the same for $25.00.

Afterwards by another deed, executed on November 5, 1889, but dated back as of the first day of August, 1878, Burton and wife quitclaimed, for an expressed consideration of $5.00, all their interest in said 40 acres to said Banking Company.

It will be observed, that the transactions referred to under this branch of the case all occurred during the pendency of this suit for partition begun by the appellees, Perry and Henderson. Burton had entered his appearance in the case as early as August 6, 1873. He filed an answer on January 26, 1881. The Louisville Banking Company was made a defendant on April 19, 1880, filed its answer on April 24,. 1880, and a cross-bill on July 3, 1882. Gardner was made defendant on February 11, 1881, and Stucky on December 21, 1882. In all the pleadings of the Banking Company filed in the case prior to July, 1890, it claimed to be mortgagee only, and sought to enforce its mortgage against such interest in the property as might be set off in the partition to Burton, or his assignee. But in answers filed in July and October, 1890, and in an amended and supplemental cross-bill filed on October 14, 1890, the Banking Company claimed, that it had become the absolute owner of the property through the deeds executed to it by Burton and Stucky, and that whatever interest in the property would have been set off to Burton, or his assignee, before the execution of said deeds should now be set off to it, as owner both of the mortgagee’s title and of the mortgagor’s equity of redemption. The Court below held, and we think correctly, that Burton did not part with his right to redeem upon the payment of what is justly due to the Bank.

Leaving out of view, for the moment, the fact, that the deed of January 14, 1884, was signed by Burton, and considering it as a deed executed by Stucky alone as assignee, was it a valid deed ? In other words, did Stucky have any interest, as assignee of Burton, on January 14, 1884, which passed from him to the Banking Company by his deed of that date ? Burton had been discharged from bankruptcy more than four years before that deed was executed, and more than three years before the entry of the order appointing Stucky assignee. Gardner had settled his accounts as assignee, and been discharged from his trust, more than three years before Stucky made his deed, and more than two years before Stucky’s appointment. It must be conceded, that the title to the property of the bankrupt passes to the assignee by the execution of the assignment of the register conveying the estate of the bankrupt. Such assignment relates back to the commencement of the bankruptcy proceeding, and, by operation of law, vests the title to all the bankrupt’s property in the assignee. (Bump’s Law and Prac. in Bankruptcy,—10 ed.—page 137, 138, 485). Here, on September 13, 1878, and by relation on August 26, 1878, the title of Burton to the 40 acres was in Gardner as assignee. But where was the title after the discharge of Gardner on June 26, 1880?

It is well settled, that an assignee is not bound to take possession of, or claim, all the property named in the bankrupt’s schedule. He may reject such of the assets as may be a burden rather than a benefit to the estate. He may decline to receive property, which is so heavily encumbered as to make it injudicious to receive it. In England, where leasehold estates pass to the assignee in bankruptcy, he is not bound to take the lease and charge the estate with the payment of the rent, if the rent is greater than the Value of the lease, but he may abandon it. In such cases, if the assignee declines to receive such property, or elects' within a reasonable time not to take it, it remains the property of the bankrupt. (Smith v. Gordan, 6 Law Rep. 318; Amory v. Lawrence, 3 Cliff. 523; Glenny v. Langdon, 98 U. S. 20; Nash v. Simpson, 78 Me. 142; Brookfield v. Stephens, 40 Ark. 366.)

The assignee is a trustee, appointed for the purpose of disposing of the assets of the bankrupt, and distributing them among the creditors. He takes the title in his official character as a trustee and as an officer of the court. The bankrupt law makes no provision for the reconveyance of the property, undisposed of by the assignee, to the bankrupt. As the assignee takes no title as an individual, but only as an officer, the title reverts to the bankrupt when the trust is ended, and the officer is discharged. When the creditors are settled with, and the bankrupt is discharged, and the estate is wound up, and the assignee is discharged, the bankrupt becomes re-instated in his original title. It has been said that “the title must be somewhere, and, under these circumstances, it is necessary to regard it 'as in the only party interested.” (Boyd v. Olvey, 82 Ind. 294; King v. Remington, 36 Minn. 15; Stevens v. Earles, 25 Mich. 40; Jones v. Pyron, 57 Tex. 43; Reynolds v. Crawfordsville Bank, 112 U. S. 405; Bump’s Law & Pr. in Bankr.—10 ed.—pages 507, 669.)

In the case at bar, while Gardner was assignee, the 40 acres were encumbered by the Wallace trust deeds, by the mortgage of the Louisville Banking Company and by a tax deed issued in 1876, and were involved in this litigation begun in 1873. When he made his final report, the facts warranted him in believing that he could realize nothing for the creditors from this land. When he said that it was beyond his. control, he said in effect, that he had never taken control or possession of it, but had declined to receive it as an asset. Although he was made a party to the present suit, yet it was not until he had been discharged as assignee, and, therefore, not until all his title, which was official and not individual, had ceased to exist. By his discharge in June, 1880, the title thereafter reverted to Barton, and bec