Winslow v. Leland , 128 Ill. 304 ( 1889 )

Mr. Justice Bailey

delivered the opinion of the Court;

The record in this case is voluminous and complicated, and various questions, both of fact and of law, have been presented and elaborately argued. Without attempting to travel over the entire ground covered by counsel in their briefs, we shall content ourselves with a consideration of those questions only which seem to us to be decisive of the case. We have reached the conclusion that the judgment of the Appellate Court should be affirmed, and such affirmance may, in our opinion, be placed upon either one of several distinct grounds.

The first point made is, that the judgments and decree upon which the complainant’s bill is based have been satisfied, or at least, that they have been so dealt with by the parties as to be no longer available as evidence of a subsisting claim against the estate of William H. W. Cushman, deceased. This point involves the contention, first, that when said judgments and decree were purchased by William H. Cushman, such purchases were made for the benefit and with the money of William H. W. Cushman, and, second, that if the money used in fact belonged to William H. Cushman, his subsequent transactions with Isaac N. Hardin, who was jointly liable with William H. W. Cushman on said judgments and decree, resulted in a satisfaction of the indebtedness evidenced thereby, or at least, should be held to estop William ,H. Cushman and his assignee from attempting to enforce them as against either debtor.

Whether the money expended in the purchase of the judgments and decree was really the money of William H. Cushman or of his father is a question of fact upon which the evidence is conflicting. The chancellor before whom the cause was heard having found the issues in favor of the defendants, it will be presumed, in support of his decree, that upon this proposition the conflict was resolved in their favor. Unless, therefore, we are able to see that the preponderance of the evidence is clearly the other way, the finding of the chancellor should not be disturbed.

The principal- witness upon this matter was William H. Cushman himself, and the difficulty grows out of the fact that, being examined on two different occasions, he gave evidence on this point which, apparently at least, is conflicting. The first occasion was when he was examined as a witness before the arbitrators chosen to appraise Hardin’s interest in the assets of the firms in which he was a copartner with William H. W. Cushman. On the second occasion he was called as a witness in the matter of a creditor’s bill brought by the complainant in this case by which he was endeavoring to reach the moneys payable on the policies of insurance on the life of William H. W. Cushman and apply the same to the satisfaction of said judgments and decree. On both occasions his testimony shows that the actual transactions by which the judgments and decree were purchased were carried on partly by himself and partly by his father. Before the arbitrators, his testimony was to the effect that he furnished all the money used both by his father and himself, the money used by his father being-furnished by him, partly by remittances and partly by paying drafts drawn on him by his father, and that the purchases were all made for the witness’ benefit. When examined as a witness in the matter of the creditor’s bill, he testified that the purchases were made in the interest and for the benefit of his father; that the money was furnished partly by himself and partly by his father; that there was a running account between them, and that he received on his account with his father, credit for whatever sums he paid in making said purchases. William H. W. Cushman was also examined as a witness before the arbitrators, and his testimony, though not very explicit, is to the effect that his son frequently furnished him money to buy the judgments, and that he had them assigned to his son as security for his advances, and that said advances were not made as a matter of personal accommodation upon a general account between himself and his son.

It should be observed that, in the matter pending before the arbitrators, the question whether the money of William H. Cushman or of his father had been used in the purchase of the judgments, or whether the judgments had been paid and satisfied or not, was of very little materiality. The arbitrators were seeking to ascertain the net value of Hardin’s interest in the assets of the firms of which he was a member, and in the accounting by which such value was to be arrived at, Hardin was liable to be charged with his proportionate share of said judgments, whether the transaction by which they had been taken up by the Cushmans was in fact a purchase or a payment.

There is only this view in which the question could be material. If the judgments were satisfied, Hardin was chargeable with only his proportionate share of the money actually expended in paying them, but if they had been purchased by William H. Cushman and were held by him adversely to the defendants therein, he ivas entitled in the statement of the account, to have Hardin charged with his proportionate share of the full amount of the judgments and decree. It seems however that William H. Cushman claimed only to have Hardin charged with his proportionate share of the money actually paid, and that the account was stated by the arbitrators on that basis. The decree was bought in for only about twenty per cent of its face, and only Hardin’s proportionate share of that sum was charged against him. This circumstance of itself tends strongly to support the view that the judgments and decree were taken up in the interest and for the benefit of William H. W. Cushman, for if his son in fact bought them with his own money and for his own benefit, no reason is shown why he should be willing to accept a credit for only Hardin’s share of the money actually<-paid, instead of charging Hardin with his share of the full amount due.

The question as to whose money was used not being material in the arbitration matter and arising there only incidentally, was not carefully investigated, and the witnesses were not fully examined in relation thereto. In the matter of the creditor’s bill, however, the question as to whether the judgments and decree had been satisfied was directly in issue, and there William H. Cushman seems to have been questioned more fully, and he there disclosed a fact upon which neither he nor his father seems to have been interrogated on the former occasion, viz., that in the adjustment of accounts between him and his father, he had received credit for all the moneys expended by him in the purchase of the judgments and decree. Upon this one point he is nowhere contradicted, and if his statement is true, it is of little consequence who furnished the money in the first instance, or whether the intention of the parties at the time the purchases were made was that William H. Cushman should take and hold the judgments and decree for his' own benefit, or as security for the money advanced. If he ultimately received, credit from his father for said money, his interestinthe judgments and decree was thenceforward precisely the same as though the purchases had been originally made by his father with his own money and for his own benefit. We are unable to say therefore that the question of fact here presented was incorrectly decided.

But even if William H. Cushman is to be treated as having purchased said judgments and decree with his own money and with a view of holding them adversely to his father and Hardin, how are his rights affected by his subsequent dealings with Hardin ? By his contract with Hardin under which the arbitration was had, he agreed to purchase Hardin’s interest in the assets of the two firms of which William H. W. Cushman and Hardin were members, paying him therefor a price to be fixed by arbitrators. It was also agreed that in making the appraisement Hardin should be charged with his proportionate share of the liabilities of the two firms, and that William H. Cushman should assume his share of said liabilities and save him harmless therefrom. It is not disputed that the indebtedness for which the several judgments and the decree in question, except perhaps the two judgments rendered against Cushman alone, constituted a part of the liabilities of said firms, of which Hardin’s proportion was to be and was in fact charged against him, and which William H. Cushman agreed to assume and protect Hardin against. Can it be doubted that charging against Hardin his proportionate share of said judgments and decree, coupled with William H. Cushman’s agreements to assume Hardin’s liability thereon and to keep him harmless therefrom, operated, between them, as a satisfaction and discharge of the judgments and decree? Upon what principle could William H. Cushman have been permitted afterwards to enforce said judgments or decree against Hardin ? Manifestly as to him these transactions operated as a complete discharge and satisfaction, and if the judgments and decree were satisfied as to Hardin, they were equally so as to Cushman the other joint debtor.

But it is said that because William H. Cushman, during the pendency of the arbitration proceedings, and in violation of his agreement with Hardin, assigned said judgments and decree as collateral security for certain indebtedness, his assignees are entitled to hold and enforce them unaffected by the settlement with Hardin. To this view we are unable to assent. Judgments and decrees are not commercial paper, and assignees of such securities take them affected with all equities and defenses which might be set up against them in the hands of the assignor. At the time Cushman assigned these securities, his contract with Hardin was in force and was in process of execution, and Hardin had a right to satisfy and discharge them in the mode provided for in the agreement. Such right could not be divested by any act of Cushman. Hardin having performed the contract on his part, the judgments and decree became satisfied as to him, and he was thereby discharged from liability thereon, and his discharge is also available on behalf of his co-debtor.

An attempt is made to invoke as against William H. W. Cushman and his representative the doctrine of equitable estoppel. It is said that he consented to the assignment of the judgments and decree by his son, and was in fact a party to such assignment, and that he and his representative should therefore be precluded from denying the validity of said securities in the hands of the assignee. Without pausing to consider how far the doctrine of estoppel would apply if the facts were as the complainant supposes, it is sufficient to say, that as we read the record, the evidence fails to show that William H. W. Cushman was a party to the assignment, or that he was aware that it had been made. True, his name appears as guarantor upon the notes given by his son for the money borrowed from White, but it appears affirmatively that he had no personal communication with White, and we find no evidence that he had any knowledge as to what collaterals his son pledged to White as security for said notes.

On the whole case then we are of the opinion that the-chancellor was justified in holding that the judgments and. decree had been satisfied, and that they no longer constituted an indebtedness or claim against the estate of William H. WCushman, deceased.

It may further be questioned whether, upon, the face of his. bill, the complainant has made out a case which entitles him to relief in a court of equity. The bill is in the nature of a creditor’s bill. It is brought by the complainant as the assignee of nine judgments at law and a money decree in equity, recovered by various plaintiffs, against William H. W. Cushman, in his lifetime. Of the nine judgments at law, five were recovered in the Circuit Court of the United States for the Northern District of Illinois. The other four were recovered in the Superior Court of Cook county, and upon those four judgments executions had been duly issued and returned unsatisfied in the lifetime of Cushman. The decree awarded execution, but it is not claimed that any execution was ever issued for its collection.

The judgments of the federal court, that being a court of another jurisdiction, can not be made the basis of a creditor’s-bill in a State court. Steere v. Hoagland, 39 Ill. 264. Nor will a creditor’s bill, properly so called, lie for the collection of the decree, no execution having been returned unsatisfied. In this respect a money decree in equity stands upon the same footing as a judgment at law. Weightman v. Hatch, 17 Ill. 281; Farnsworth v. Strasler, 12 id. 482. The general rule, subject- - it is true to a very few exceptions, is, that before a bill can be filed to reach equitable assets, the creditor must first recover a judgment at law, or what in a proper case would be its equivalent, a money decree in equity, and have an execution issued and returned unsatisfied. This is a rule so well established as to require no citation of authorities. So far then as the five judgments recovered in the federal court and the decree in chancery are concerned, the complainant has no equities superior to those of a simple contract creditor, and as to that portion of his demand his bill must necessarily fail, unless he has brought his case within some one of the recognized exceptions to the general rule.

How is it with the judgments recovered in the Superior Court ? There can be no doubt that, as against Cushman, so far as those judgments are concerned, the creditor must be deemed to have exhausted his legal remedies. Had Cushman been living therefore, a creditor’s bill might unquestionably have been brought against him upon those judgments, assuming of course that they had not been paid or otherwise satisfied. The bill as filed seeks to reach personal assets only, and at the time it was filed, Cushman had been dead and his administrator had been appointed more than two years, and his estate was in process of administration. No charge is made of any fraud committed by Cushman in his lifetime, and the personal assets sought to be reached are not such as had been fraudulently disposed of by Cushman, but which, if they exist at all, are within the reach of his administrator, and are assets which it was within the power and was the duty of his administrator to collect and distribute.

Can it be said, as the case now stands, that the complainant has exhausted his legal remedies? Eemedies which might have been pursued in the lifetime of Cushman were extinguished by his death, and a new class of legal rights and remedies was created. His personal estate is no longer liable to be seized upon execution, but creditors are given the right, upon exhibiting and establishing their claims in the county court, to share in the distribution of his personal estate.

Not only is it true that when a debtor dies, the law gives new legal remedies against his representatives, but the rule is imperative that, to entitle a creditor to share in the distribution of his estate, those remedies must be pursued. A creditor of a deceased person must exhibit and prove his claim in the county court before he can be entitled to payment. Reitzell v. Miller, 25 Ill. 67. And in this respect, judgment creditors, except so far as their judgments are liens on real estate, and simple contract creditors, stand upon the same footing. Paschall v. Hailman, 4 Grilm. 285; Turney v. Gates, 12 Ill. 141; Clingman v. Hopkie, 78 id. 152. It is difficult then to see how the mere fact that a creditor has exhausted his legal remedies against his debtor while living, can furnish a sufficient ground for proceeding by creditor’s bill to reach personal estate while the administration is in progress, especially where no fraud is charged against the intestate, and the only scope of the bill is, to seek a remedy against the fraud or failure of duty of the administrator himself, and to reach property which the administrator is entitled to but which he has failed to get into his possession.

In Hams v. Douglas, 64 Ill. 466, this court said: “A court of equity will not assume jurisdiction, except in extraordinary cases where the remedy afforded by the statute is inadequate. It is for the very plain reason that the statute had pointed out a different mode, and the party must pursue the remedy provided by law. By the provisions of the Statute of Wills, claims against the estate are to be classified, and some are to be paid in full and others pro rata. A claimant can not avoid this statute by resorting to equity. The law is settled, in this State at least, that a court of equity will not ordinarily assume jurisdiction until the claimant shall have exhibited his claim and had it allowed in the county court, and then, if any special reasons, that may be deemed sufficient, can be assigned, why that court can not afford the requisite relief, equity will assist him, but not otherwise.” The doctrine here stated was reaffirmed in Blanchard v. Williamson, 70 Ill. 647.

The bill alleges that the complainant, within two years after letters of administration were issued, exhibited in the county court of LaSalle county his claim against the estate of Cushman upon all of said judgments and upon said decree, and caused proceedings to be commenced in said court for its allowance, but there is no averment that it was proved up and allowed, and the evidence shows that said proceedings, after remaining pending and undetermined for about five years, were dismissed by the county court on its own motion for want of prosecution.

The complainant’s position seems to be, that his bill makes a ease within one of the recognized exceptions to the rule requiring an exhaustion of his legal remedies before resorting to a court of equity for relief. The exception relied upon is plainly the one under which courts of equity will, in extraordinary cases, take upon themselves the administration of estates. The bill purports to be filed on behalf of the complainant and on behalf of such others of the creditors of Cushman as might choose to come in and bear their proportionate share of the expenses of the litigation. After alleging the recovery of said judgments and decree, the issuing and return of executions so far as executions were issued, the proceedings by which said judgments and decree were assigned to and became the property of the complainant, the death of Cushman and the appointment of his administrator, the bill alleges, in substance, that Cushman left large equitable interests and concealed assets which the administrator made no effort to reduce to possession; that the administrator and heirs were colluding together with divers other persons to defraud the creditors of the estate out of their just demands; that Cushman at his death left large assets in the hands of surviving partners, which they were wilfully and fraudulently seeking to convert to their own use, claiming that nothing was due therefrom to the estate of Cushman, and that they had disposed of a large amount of said assets, realizing a large profit therefrom. The bill prays for answers under oath, and a discovery of all property, interests and effects of said Cushman, or of which he was possessed or in which he was in any way interested at the time of his death, and not already disposed of by his administrator in due course of administration; and for the appointment of a receiver to receive all of said assets, and manage and dispose of the same as the court should direct, and apply the proceeds to the payment of the complainant’s claim, and the claims of such other creditors of said estate as should be entitled to a participation therein.

The evident purpose and scope of the bill is, to induce the court in which it was filed to take upon itself the administration of the estate of Cushman, so far as it had not already been administered upon, and thus supersede the jurisdiction of the county court. The court is asked to take possession of the remaining assets of the intestate through the instrumentality of a receiver, and distribute the same or the proceeds thereof to those entitled thereto. This is of the very essence of the administration of an intestate estate. If it be said that the real purpose of the bill is to draw to the court of chancery the administration of the estate only as to certain specified assets, viz., the interest of the intestate in the assets of the partnership of which he was a member, the -answer is, that when a court of equity takes upon itself the administration of an estate at all, it will take the whole administration into its hands. Freeland v. Dazey, 25 Ill. 294.

A court of chancery may, in the exercise of its general jurisdiction, take upon itself the administration of an estate, but it has been frequently held that it will not do so except in extraordinary cases. (Freeland v. Dazey, supra; Heustis v. Johnson, 84 Ill. 61; Cowdrey v. Hitchcock, 103 id. 262; Harris v. Douglas, supra.) Is such a case made out by the bill ? The allegation is merely that the conduct of the administrator had been negligent and fraudulent, but no reason is assigned why the ordinary powers of the county court are not adequate to the protection of all the complainant’s rights. It is not shown that the interposition of that court has been asked for, or that the alleged misconduct of its administrator has been in any way brought to its attention. The county court has ample power to compel an administrator to proceed properly and faithfully in the discharge of his duties. If he has made mistakes it has power to correct them. If he has been guilty of fraud, or has wasted the estate, or has shown himself incompetent, or an improper person to conduct the administration, the court has power to call him to account, or to remove him and appoint another and suitable person in his place. If the administrator in this case has failed or refused, either negligently or fraudulently, to call Cushman’s surviving partners to an account, or has made a collusive settlement with them, the court has ample power to apply the proper remedy. It ■does not appear, however, that such power has been in any way invoked.

In Freeland v. Dazey, the misconduct charged upon the administrator was, the neglect to file an inventory whereby the •estate had been wasted, and neglecting and refusing to settle the estate. The court, in holding that chancery should not take jurisdiction in such case, adopted as a test, the fact that it did not appear that the ordinary powers of the probate court were inadequate to the protection of all the complainant’s rights. In Heustis v. Johnson, the bill charged that the executor had failed to discharge his duties promptly, and had by divers plausible devices, excused himself from properly accounting, when he ought long before to have made a final settlement of the estate. It was held that there was no jurisdiction for the reason that the county court had full power to ■grant relief in the case made by the bill. In Harris v. Douglas, it was held, in the language already quoted, that a court of equity will take jurisdiction only where “special reasons, that may be deemed sufficient, can be assigned, why that court (the county court) can not afford the requisite relief.”

We are also of the opinion that the complainant effectually released his right to have his judgments and decree satisfied out of the personal assets of the Cushman estate, by. the instrument dated August 31,1886, executed by the complainant, Isaac N. Hardin and Gertrude H. Hardin, to the widow and surviving children of said Cushman. That instrument recited a consideration of $3500, and was executed under the hands and seals of the parties of the first part. By it said parties of the first part agreed, that any and all claims filed by them or either of them in the county court of La Salle county against the estate of Cushman should be withdrawn and dismissed, and all proceedings for the collection thereof in that court abandoned ; that no obstacles whatever should be interposed by said parties or either of them to the final settlement of said estate in said court, and that said estate might be fully and finally settled, as in due course of administration, wholly discharged of any claim, in law or equity, by said parties or either of them, against the same, and they thereby released and relinquished to said widow and surviving children -of Cushman any claims they or either of them had or might have to share in the general distribution of said estate. And said parties further stipulated that a final settlement by the administrator of said estate, and the distribution of the assets thereof by said court,, might be had and made, discharged of any and all claims whatsoever of said parties or either of them, in law or equity, to any part or portion thereof. It is true, a reservation was made or attempted to be made by the complainant and the Hardins, of the right, by any proceedings then pending or thereafter to be instituted, to enforce the collection of any judgment or decree or other valid claim they or either of them may have had against Cushman in his lifetime, or against his legal representatives, by subjecting to the payment thereof any interest which Cushman in his lifetime had or his legal representatives then had, in any causes of action or dealings between Cushman and the firms of which he had been a member, or the railroad companies with the building of whose roads said firms had been specially connected, or any claims or causes of action which may have existed in favor of Cushman against Plumb, Shumway and Plinekley or either of them.

The remedy by which the creditors of an intestate may subject the personal estate of their deceased debtor to the payment of their claims, is by due course of administration. As to all personal assets which are legally within the reach of the administrator, and upon which the creditor has obtained no lien during the lifetime of his debtor, this remedy is exclusive. The rule may be otherwise in case of assets fraudulently disposed of by the intestate in his lifetime. All personal assets as to which the intestate was himself in a position to assert title at the time of his decease, pass to the administrator, and it is through him alone that creditors must seek to have them subjected to the payment of their debts. It follows then that a covenant by a creditor, that all proceedings for the collection of his debt through the instrumentality of the administration shall be abandoned; that the estate may be finally settled, and final distribution made wholly discharged of his claim, and releasing and relinquishing to the widow and heirs of the intestate any claim he might have to share in such distribution, is in effect a complete abandonment and release of all legal claim to have his debt satisfied out of any personal estate which the administrator has reduced to possession, or to which he was entitled as administrator.'

The complainant does not seek by his bill to reach any property not assets of the estate of Cushman. The existence of no property is alleged which the administrator could not and ought not to have taken into his possession. If it be true, as the bill charges, that he failed to discharge his duty, either through negligence or'fraud, the nature of the assets which the bill seeks to reach is in no way changed’. Ample power to compel their collection and distribution resided in the county court, and that is the tribunal to which the law had committed the jurisdiction in matters of administration. The complainant then by renouncing and abandoning his right to reach said assets through process of administration, must be held to have abandoned the only remedy the law gave him, and to have placed said property wholly beyond the reach oí his claim.

Nor can it avail him that a reservation was made by the same instrument of the right, by other proceedings, then pending or thereafter to be instituted, to enforce the collection out of Cushman’s interest in the assets of the firms of which he was a member at the time of his death. That interest could be reached by him by due course of administration and not otherwise, and the reservation was therefore nugatory.

Nor can it be seen that the complainant obtained any rights by virtue of the instrument executed to him by the widow and children of Cushman of the same date with the instrument last above mentioned. By that instrument said widow and children transferred and set over to the complainant all their claims and causes of action growing out of the business and dealings between Cushman and the several firms with which he had been connected, and also their right to a further accounting with the members of said firms, for moneys or securities belonging to Cushman. The fact being that all rights and causes of action growing out of Cushman’s dealings with said firms, and the right to an accounting wijih the surviving members of said firms, were vested in the administrator and not in the widow and children of Cushman, there were no rights or interests of that character which said widow and heirs could assign to the complainant. That they have an assignable interest in their distributive share of the assets of the estate after the payment of debts need not be questioned, but that was an interest wholly distinct from an interest in specific chattels upon which no administration had been had. As to the latter they had no interest susceptible of assignment, the entire ownership, for all the purposes of administration, being vested in the administrator.

But even if this were otherwise, it can scarcely be questioned that the widow and children of Cushman had lost, by their laches, all right to demand a further accounting from Cushman’s surviving partners, at the time they undertook to assign such right to the complainant. The evidence shows that an accounting and settlement were had between the administrator and said surviving partners, which were approved by the county court of LaSalle county by a formal order entered in that court May 21, 1881, and that upon a bill filed in the circuit court of said county, based upon such accounting and settlement, a decree was entered June 21,1881, formally declaring a final settlement of said partnerships and discharging said partners from all liability to the estate of Cushman. This order and decree remained unchallenged, in any form, by either the widow and children of Cushman or any one else, up to the time said widow and children attempted to transfer their right to such accounting, although something over five years had elapsed. No explanation of this delay is attempted, nor does the complainant attempt to explain his own delay for nearly one year after said assignment to him, to attack or call in question the order and decree of the county and circuit courts of La Salle county, or the accounting and settlement upon which they were based. After an unexplained delay covering a period of nearly six years in all, during which one of the surviving partners has died, the situation of the others has materially changed, and more or less of the evidence by which the true state of the accounts of said firms could be established has disappeared, it should be held, we think, that the widow and children of Cushman, and their assignee, should be barred by their laches of their right to attack said accounting and settlement as fraudulent.

The demurrer to the supplemental bill was properly sustained. That bill was filed for the purpose of setting up the interest obtained by the complainant, through the assignment to him from Mrs. Cushman and her daughters, in the assets of the firms of which Cushman was a member. As no interest capable of being asserted either at law or in equity passed to him by the assignment, he had no newly acquired interest which could be made the basis of a supplemental bill. Said bill also attacks the accounting and settlement of 1881, on the ground of fraud, but in no way attempts to excuse or account for the delay of nearly six years, during which the order and decree founded on said settlement and judicially confirming the same had in no way been called in question.

The cross-bill filed by Mrs. Cushman and her daughter, was properly dismissed. That bill was filed October 24,1887, and attacked the settlement of 1881 on the same ground set up in Winslow’s supplemental bill. No attempt was made to excuse laches, and for that reason the bill was insufficient. But by an instrument executed by the complainants in the cross-bill to Plumb and the administrators of Shumway, dated December 2, 1881, said complainants, for a valuable consideration, assigned to Plumb and said administrators, all their interest in the personal estate of Cushman, deceased, and appointed Plumb and the administrators of Shumway their attorneys, irrevocably, to collect and receive their distributive share of said personal estate, and in their names to execute to the administrator of Cushman a release of all his liability to them. Under this power Plumb and the administrators of Shumway executed such release, and the assignment, the warrant of attorney, and the release executed thereunder, being set up by plea to the cross-bill, the plea was held sufficient, and no further attempt was made by the complainants in the cross-bill to litigate the matters thus presented.

We are unable to see that any error was committed by .the order of the court dismissing the cross-bill of Nellie Driver. The complainant in that bill was the administratrix of a deceased son of Cushman, and said bill was filed April 27,1887, and seeks to set aside the settlement of 1881, and the order and decree of the courts of LaSalle county confirming the same, alleging the same grounds for such relief as were set up in Winslow’s supplemental bill. Here, as in the other bills, no attempt is made to excuse laches, although said order and decree had been in full force and unquestioned for about six years. The time within which the decree could have been reviewed on error had long since elapsed. It was incumbent upon all parties bound by the decree, if they desired to attack it on the ground of fraud, to do so in apt time, and a delay of nearly six years, unexplained, must manifestly be held to be sufficient to bar relief.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.