Duckworth v. Francis , 1910 Ill. App. LEXIS 660 ( 1910 )

Mr. Justice Thompson

delivered the opinion of the court.

The bill prays to have an administrator’s deed of real estate that was owned by Henry Duckworth at the time of his death, with a deed made by the grantee in the administrator’s deed of the same premises to Thurman H. Francis, set aside on the ground that the administrator’s sale was void, because of want of jurisdiction of the parties, the statute requiring summons in such proceedings to be made returnable to the first term after the petition is filed unless less than ten days shall intervene between the filing of the petition and the first day of the succeeding term. The petition was filed May 15, 1906, and the summonses were made returnable to the July term, whereas they should have been to the June term.

The court found that the process was void, that the County Court did not obtain jurisdiction of the parties in the proceeding to sell real estate to pay debts, and decreed that the deeds were void and found the title of the homestead estate of Henry Duckworth to be in the complainants in the original bill, who are also .the defendants in the cross-bill.

The court found for the complainants in the original bill all that they prayed for in their bill except that the court refused to decree partition and did not order the assignment of dower to the widow. No question as to the jurisdiction of this court has been raised by either appellants or appellees. While the appellants argue that the court erred in not ordering the assignment of dower which the widow is entitled to after she had abandoned the homestead, yet they cannot well be heard to raise the question as the widow acquiesces in the decree, and the failure to assign dower does not injure the appellants. The appellants by none of the assignments of error raise any question concerning the costs. They have obtained all and more than they claim, so far as the title is concerned, and there is nothing for them to appeal from in that regard. Gray v. Jones, 178 Ill. 169; Fields v. Coker, 161 Ill. 186. The court did not decree partition, because it found that the debts of Henry Duckworth had not been paid, and decreed that the estate of homestead of Henry Duck-worth of which the fee simple title was in Henry Duckworth, and which the widow had abandoned, should be sold to pay the debts. The demurrer admits that the widow had an award of $810 and a claim of $394.52 for funeral expenses and other claims paid by her, which the County Court had allowed, on which she had only received $219.75. When the deed to her was set aside for which she had paid by crediting the purchase money on her award and claims allowed, equity in setting aside her deed would hold that her claims were not paid. She is not asking to be subrogated to the rights of other parties but only that her just claims allowed against the estate be paid. The widow received from the sale neither the land nor any proceeds thereof, and when the sale is set aside her claims remain undischarged. Lagger v. Mutual Loan & Building Assn., 146 Ill. 283; Ebelmesser v. Ebelmesser, 99 Ill. 541. It is a maxim of equity that he who comes into equity for relief must do equity. It would be unconscionable to set aside the administrator’s deed and find at the same time that the claims of the widow, the purchaser of the property, had been paid by the making of the deed when she had received nothing.

The court properly decreed a re-sale of the property to pay the claims of Bozelia Duckworth. We are of the opinion, however, that the court erred in dismissing the original bill and in decreeing costs against appellants, in as much as the deeds were held to be void under that bill and the title was found to be in appellants, subject to the payment of the debts, and appellees do not question the title of appellants.

So much of the decree as dismisses the bill at their costs is reversed; the remainder of the decree is affirmed ; and the cause is remanded with directions that the costs in the trial court be paid out of the first proceeds of the sale, and the remaining proceeds be applied so far as required to the payment of the claims of Bozelia Duckworth, and the remainder, if- any, divided amongst the complainants according to their respective interests.

Affirmed in part, reversed m part, and remanded with directions.