Jersey County IL Archives Court.....Choteau, V Jones 1849
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Source: Reports Of Cases Illinois
Written: 1849

Charles Choteau v. George W. Jones et al.

Appeal from Jersey.

1. Deed — description. A description of lands in a deed, such as "two entire 
sections of land in the Marine settlement, and state of Illinois, and patented 
to the said John Rice Jones," the grantor, was sufficiently definite and 
certain, as the locality was well known, and upon examination of the proper 
records, it could be ascertained which two sections of land had been patented 
by the grantor; but if it should appear by the records, that more than two 
sections had been entered, or that no lands in that settlement had been 
entered by the grantor, then the description would be void.(l)

2. Fraudulent conveyance — good inter partes. A deed, clearly appearing on its 
face to be a voluntary conveyance, although good between the parties, is 
fraudulent and void as against pre-existing creditors of the grantor.(2)

3. Same — avoidance by surety. The relation of debtor and creditor between 
principal and surety, so as to entitle the surety to avoid a voluntary 
conveyance, made by his principal, commences at the date of the obligation by 
which the surety becomes bound, and not from the time he makes payment.(3)

4. Notary public — law of 1819. The law of 1819 did not confer upon a notary 
public authority to take and certify the acknowledgment or proof of a deed.(4)

5. Administrator's sale — statute of frauds. An administrator can not avoid a 
voluntary deed of his intestate, nor can he take advantage of a fraudulent 
conveyance made by his intestate. But, where A executed and delivered to his 
two sons, B and C, a voluntary deed of lands, himself being indebted at the 
time, which deed was not recorded so as to be notice to creditors and bona 
fide purchasers, and afterwards, on the death of A, his administrator, who 
held the title papers to said land, and the public records showing that A died 
seized of the premises, applied to the circuit court for an order to sell said 
lands, in accordance with the statute, which order was granted, and the said 
lands were sold under said order — the said B and C having been made parties 
to said suit, and interposed no defence or claim to said lands: Held that 
creditors and purchasers had the right to conclude, and to act on the 
conclusion, that the said lands belonged to the intestate at the time of his 
death, and that B and C had no other interest therein than as heirs at law of 
their father; that the purchasers at such sale of the administrator succeeded 
to all of the rights of the creditor, in fraud of whom the voluntary 
conveyance was made; and that they are entitled to the benefit of the statute 
of frauds equally as the creditor himself.(5)

6. Tax sale — heir takes nothing additional by. A purchaser at a tax sale of 
land, in which he has an interest as heir, acquires no additional title.

7. Purchase — gives nothing to title of heir. A party, who claims title to 
land, which is listed for taxation in his name, acquires no greater interest 
by permitting it to be sold for taxes, and purchasing it himself. (6)
 
8. Vendor and vendee — bona fide purchaser from fraudulent. The doctrine is 
now well settled that a bona fide purchaser, for a valuable consideration, and 
without notice, either from a fraudulent grantor or grantee, shall be 
protected. (7)

(5) On the death of the owner of realty the title thereto is eo instanti cast 
on the heirs, by operation of law. The administrator of an intestate takes 
neither estate therein nor title thereto; he has but a naked power to sell the 
land for the payment of such debts as were in existence at the time of the 
death of decedent in case the personal estate be insufficient, Walbridge v. 
Day, 31 Ill., 379; Le Moyne v. Quimby, 70 Ill., 399; Kinney v. Knoebel, 51 
Ill., 112; Walker v. Diehl, 79 Ill., 473; and, while all real estate of the 
intestate may be sold for debts by the administrator, he has no power in that 
direction without order of the proper court, Stillman v. Young, 16 Ill., 318; 
see R. S., 1874, p. 121, §§ 99 et seq.; Cothran's Stat., ch. 3, §§ 97 et seq. 
He may not pay taxes thereon nor save it from sale, Hall v. Irwin, 2 Gilm., 
176; Phelps v. Punkhouser, 39 Ill., 401; Stone v. Wood, 16 Ill., 177; Hopkins 
v. M'Cann, 19 Ill., 113; Marshall v. Rose, 86 Ill., 374, nor can he sell and 
convey any interest in the land of which his intestate died seized, though the 
latter conveyed to hinder, delay and defraud creditors, Beebe v. Saulter, 87 
Ill., 518, or convert an equitable into a legal title, Smith v. M'Connell, 17 
Ill., 135; Gridley v. Watson, 53 Ill., 186; Shoemate v. Lockridge, 53 Ill., 
503; or file a bill to quiet title, Le Moyne v. Quimby, 70 Ill., 399; Cutter 
v. Thompson, 51 Ill., 531; Ryan v. Duncan, 88 Ill., 144. It results that rents 
accruing after death of the owner descends, as a chattel real to the heir, the 
administrator having no concern therein, Crosby v. Loup, 13 Ill., 625; Green 
v. Massie, 13 Ill., 363; Poltz v. Prouse, 17 Ill., 487; Dixon v. Niccolls, 39 
Ill., 372.

(6) Purchase at tax sale of part or the whole of a piece of land will not 
strengthen the title of one who is bound to pay the tax, Frye v. Bank of Ill., 
11 Ill., 367; Voris v. Thomas, 12 Ill., 442; Ralston v. Hughes, 13 Ill., 469; 
Barton v. Moss, 32 Ill., 50; see Irving v. Brownell, post, p. 414; Bracken v. 
Cooper, 80 Ill., 221; Stubblefield v. Borders, 92 Ill., 279; being bound to 
pay such party will not be allowed to advantage himself of a title which grows 
out of his own neglect of duty, Baily v. Doolittle, 24 Ill., 577; Busch v. 
Huston, 75 Ill., 343; Lewis v. Ward, 99 Ill., 525. So vendee in possession 
under a contract of sale and purchase, the taxes being collectible from him, 
can not defeat vendor's title by purchase at tax sale or by acquiring the 
certificate from a purchaser, Voris v. Thomas, 12 Ill., 442. In like manner 
one tenant in common can not purchase an outstanding title for his own 
exclusive benefit, as against his co-tenant, Bracken v, Cooper, 80 Ill., 221, 
and it is a fraud for such an one to permit the land he holds to be sold for 
taxes and he purchase for his own benefit, Brown v. Hogle, 30 Ill., 119; 
wherefore, if he pays the whole sum due he has only a claim for re-
imbursement, Morgan v. Herrick, 21 Ill., 481, and his payment inures to the 
benefit of each and all of the joint owners, Chickering v. Failes, 38 Ill., 
342; M'Connel v. Knoepel, 46 Ill., 519. Mere possession, however, will not 
debar one from purchasing from another the certificate of sale and taking a 
deed which he may rely on, Stubblefield v. Borders, 92 Ill., 279.

(7) Fraudulent transfer of title to real property not set aside, rights of an 
innocent bona fide purchaser having intervened, Scarlett v. Gorham, 28 Ill., 
319; it is not in harmony with the principles of law and equity to declare 
void a conveyance to an innocent purchaser, because of the fraud of his vendor 
in obtaining title, Dickerson s. Evans, 84 Ill., 451; see Gavaghan v. Bryant, 
83 Ill., 376.

(8) An administrator's deed furnishes a foundation for title deducible of 
record under the statute of limitations of 1835, Collins v. Smith, 18 Ill., 
160. See Stat. 1833, Jan. 18; Stat. 1837, July 21, §§ 12, 32; R. S., 1845, p. 
349, § 8; R. S., 1874, p. 674, § 4; Cothran's Stat., ch. 83, § 4; R. S., 1874, 
p. 275, § 12; Cothran's Stat., ch. 30, § 12.

(9) An instrument affecting or relating to the title to real estate may be 
recorded, though not acknowledged, and operate as constructive notice to 
subsequent purchasers and creditors, and common law proof of execution will 
suffice. Reed v. Kemp, 16 Ill., 445.

9. Recording law — first to record has better title. Our statutes relative to 
the recording of deeds, etc., applies equally to administrators' deeds as to 
other conveyances; and where, as in this case, the contest is between a 
purchaser succeeding to the rights of the creditors of the fraudulent grantor 
and bona fide purchasers from the fraudulent grantees, the parties are equally 
meritorious and innocent, but the law wisely favors the most vigilant, and he 
who first places his title on record must prevail.(8)

10. Same — unacknowledged deed. The recording of deed not acknowledged gives 
it no additional validity or effect. (9)

This is a bill in chancery, filed in the Madison circuit court on the 7th 
March, 1844, to set aside and cancel a certain deed of conveyance of two 
sections of land situate in that county, of the date of January 31, 1824, from 
John Rice Jones to his sons, George W. Jones and William P. Jones.

The bill sets forth that, on 10th November, 1841, John Rice Jones, 
administrator of one Thomas Brady, deceased, executed his bond to the governor 
of Missouri, being an administration bond, for the faithful administration of 
the estate of Brady; and that one Pierre Choteau was his security on the bond. 
That on the first day of February, 1824, the said John Rice Jones departed 
this life intestate, leaving numerous heirs, who are named and made parties 
defendants to the bill. That on the 10th November, 1825, the said governor, 
suing for use of D. B. Hill and Absalom Keese, in the circuit court of St. 
Louis, sued on the bond of said Pierre Choteau, as the security of said John 
Rice Jones, deceased, for breaches of the condition by him in his life time; 
and at the November term, 1826, recovered judgment for $6,000, the penalty, 
with costs, etc., upon which judgment execution was awarded for $3,032 08, the 
damages occasioned by the breaches; which judgment was, at the November term, 
1827, on appeal to the supreme court, affirmed, but was afterwards enjoined, 
except $1,928, part thereof, and interest thereon, to $118 89, and service and 
commission to $23 36; also costs of suit to $40 — amounting in all to $2,110 
28 3/4; and this sum was collected from the said Pierre Choteau. That George 
W. Jones, one of the defendants, and son of the said John Rice Jones, on 3d 
March, 1826, in Randolph county, Illinois, administered on the estate of the 
said deceased; and that, at the August term of the Randolph circuit court, 
1829, the said Pierre Choteau commenced suit against the said George W. Jones, 
as administrator of the said John Rice Jones, deceased, and at the August 
term, 1830, recovered judgment in that suit for $2,402 20. 

This judgment, so recovered as aforesaid, was for the amount of money paid by 
Pierre Choteau as the security for John Rice Jones, deceased, and the interest 
thereon — and said George W. Jones had full notice of this fact, etc. The 
letters of administration granted to George W. Jones, were revoked on 3d 
December, 1832, and on the 8th of July, 1844, Harvey Clendinnin, the public 
administrator for Randolph county, was appointed administrator of John Rice 
Jones, deceased, and the personal estate was insufficient to pay the claims 
against the estate; and the said Pierre Choteau was a creditor of the estate, 
and his claim filed against the estate being balance of his original claim, 
amounted to $1,370 85, with interest thereon from 13th January, 1830. That the 
personal estate of the said John Rice Jones being insufficient to pay the 
debts against the estate, the administrator, Harvey Clendinnin, applied to the 
circuit court, at the April term, 1835, and obtained an order to sell the 
lands mentioned in his petition, among which are sections fourteen and twenty-
three, township four north, range seven west, in Madison county, for the 
payment of the debts of deceased.

Said John Rice Jones was the patentee of said lands, and had before his death 
acquired a complete legal title in fee simple; and the administrator, 
Clendinnin, in pursuance of said order, and after due notice given, on the 3d 
day of August, 1835, at Kaskaskia, sold those lands at public auction, and 
Pierre Menard, jr., bid the highest price for section fourteen, township four 
north, range seven west, to wit, $800; and it was struck off to him; and the 
said Harvey Clendinnin, as administrator, on the 4th of August, 1835, made and 
delivered to him a deed for last named tract of land. And, at the time, place, 
and manner aforesaid, the said Harvey Clendinnin sold to complainant said 
section twenty-three, township four, range seven west, for the sum of $800, 
and made and delivered to him a deed therefor on the 4th August, 1835. That, 
on 22d day of December, 1840, the said Pierre Menard, jr., and Caroline, his 
wife, conveyed to complainant said section fourteen; so that complainant is 
the sole owner of said two sections of land in Madison county.

The said John Rice Jones being indebted to the governor of Missouri as 
aforesaid, shortly before he died, to wit, on the 31st of January, 1824, made 
a certain deed to his son, George W. Jones, one of the defendants, and William 
P. Jones, in consideration, as is stated in said deed, of love and affection, 
and without any valuable consideration, conveying to his said sons several 
tracts of land, and amongst others, two tracts of land described as "two 
entire sections of land in the Marine settlement;" adding no other or further 
description thereto.

The said George W. Jones and William P. Jones have claimed the two sections, 
which are fully described in the deeds through which complainant derives 
title, by the deed made by John Rice Jones, wherein two sections in the Marine 
settlement are attempted to be conveyed to them; and the said John Rice Jones 
made said conveyance for the purpose of defeating the claims of his creditors, 
and without valuable consideration; and the said George W. Jones and William 
P. Jones had notice thereof, and knew that John Rice Jones was the 
administrator of the estate of the said Thomas Brady, and had executed his 
bond for the faithful administration of said estate to the governor of 
Missouri, for the use of such persons, as were interested in the settlement of 
said estate; and the said George W. Jones had full knowledge, soon after his 
father's death, that suit had been commenced on said administration bond 
against Pierre Choteau, one of his securities, and that judgment had been 
obtained; and also, that Pierre Choteau had paid said judgment; that he had 
notice of the suit instituted against him as administrator of his father's 
estate by said Choteau, and was a party to the judgment obtained in the 
Randolph circuit court, and knew the other legal claims against the estate of 
his father; and had notice of the application of Harvey Clendinnin, the 
administrator, for the sale of the various tracts of land alleged to be his 
father's or subject to the payment of his debts, including the said sections 
fourteen and twenty-three, and of the order of court made in pursuance 
thereof, and of the subsequent sale to Pierre Menard and complainant. But the 
said defendant, Jones, continued to claim the lands purchased by complainant, 
and exercised acts of ownership over the same; and that, in order to obtain a 
less questionable title to the land of which or that part of which he claimed 
to be the owner, he fraudulently suffered the same to be sold for taxes due 
for 1832, and did buy them in at the tax sale, and obtained deeds for the same 
(describing them), from the auditor of the state of Illinois, all bearing date 
25th February, 1833, thereby intending to defeat the just claims of the 
creditors of the said John Rice Jones, and to convert the land, which ought to 
have been made the fund to satisfy the debts against the estate, into lands of 
his own, and put it beyond the reach of the creditors of the same.

After the obtaining by said Clendinnin of said order of sale, and after the 
making of the sale of the said sections fourteen and twenty-three, and the 
execution of deeds therefor, to the said Pierre Menard, jr., and complainant, 
the said George W. Jones conveyed, or attempted to convey away, portions of 
said sections of land, as follows: (naming the persons, being defendants to 
the bill, and the several portions of said sections to them conveyed 
respectively, and the dates of the several and respective conveyances to 
them). All of which conveyances were made fraudulently, and for the purpose of 
defeating the creditors of the estate of said John Rice Jones, and after he 
had full notice of the proceedings in the Randolph circuit court, and of the 
sale of said, lands by the said Harvey Clendinnin, administrator as aforesaid, 
under the order of said court; also, the subsequent purchasers had legal 
notice of all these facts. And the said George W. Jones still claims to be 
owner of south half of south-east fourteen, and the east half of section 
twenty-three.

The bill concludes with a prayer for specific as also for general relief.

George W. Jones, in his answer, admits it may be true that his father, John R. 
Jones, together with Pierre Choteau, entered into administration bond on the 
estate of Thomas Brady, deceased, to governor of Missouri, 10th November, 
1821; the death of John Rice Jones, intestate, on 31st January, 1824, and that 
his heirs now living are John Rice Jones, Myers F. Jones, Augustus Jones, 
Maria Jones, and this defendant, George W. Jones; and his heirs, who have 
departed this life, leaving issue, as set forth in the bill, are Harriet 
Jones, afterwards Harriet Scott, Eliza Jones, afterwards Eliza Scott, and 
William P. Jones; that it may be true that Pierre Choteau was sued on said 
bond and judgment obtained, and submits same on such proof and exhibits as 
plaintiff may adduce.

Defendant believes the administrators of John Rice Jones, i. e. self and 
Augustus Jones, had sufficient and now have sufficient assets to pay off his 
debts in Missouri; defendant administered on the estate of his father in 
Randolph county, Illinois, and Pierre Choteau, at August term, 1829, at 
Randolph circuit court, Illinois, commenced suit against the defendant for the 
recovery of moneys alleged to be due from his late father, and recovered a 
judgment for $2,402.20, and costs of suit. Denies all knowledge that the 
judgment recovered against him as administrator of John Rice Jones, in the 
Randolph circuit court, by Pierre Choteau, was for money paid by said Pierre, 
as the security of John Rice Jones, deceased; and denies all personal notice 
that said Pierre Choteau was at any time security for the said John Rice 
Jones, or that he, as such security, had any money to pay for John Rice Jones, 
deceased; also, all knowledge of the appointment of Harvey Clendinnin, to be 
administrator of John Rice Jones, or that any court had ordered a sale of the 
lands in controversy; and that John Rice Jones, at the time of his death, or 
his representatives since, had title to sections fourteen and twenty-three. 
Denies that Clendinnin, as administrator of John Rice Jones, deceased, had any 
right to dispose of sections fourteen and twenty-three, to pay his debts. Has 
paid in taxes and redemption money for sections fourteen and twenty-three, out 
of his private funds, sufficient, when consolidated, to pay for them at low 
price — and that what he has paid in taxes, and what he has advanced to his 
brother, William P. Jones, in cash and payment of debts due by him, together 
with a fair compensation for loss of time in attending to same, when 
consolidated, would pay for sections fourteen and twenty-three, at their 
present value. Knows nothing of conveyance from Pierre Menard, jr. to 
complainant, but insists that a deed from P. M., jr. and wife, could not vest 
a title in complainant. Denies that John Rice Jones was indebted to the 
governor of Missouri on his administration bond, about the estate of Brady, 
but not that a recovery may have been had after his death against his 
security. On 31st January, 1824, John Rice Jones, in consideration, as well of 
love and affection as of the sum of $1, conveyed to this defendant, and his 
brother, William P. Jones, two entire sections of land in the Marine 
settlement, in Illinois, thereby intending to convey sections fourteen and 
twenty-three, in township four north, of range seven west, in Madison county; 
the said sections being the only ones owned or claimed by John Rice Jones in 
the Marine settlement, in the state of Illinois, Madison county; and the 
Marine settlement being well known, and the only one then or since bearing 
that name, or lying in Madison county, and state of Illinois. Which said deed 
and acknowledgment are as follows:

"This indenture, made this thirty-first day of January, 1824, between John 
Rice Jones, of the one part, and George W. Jones and William P. Jones, of the 
other part, witnesseth: that the said John Rice, in consideration of the love 
and affection he bears his sons, the said George W. Jones and William P. 
Jones, and for the further consideration of one dollar, in hand paid, doth 
hereby grant, give and convey unto the said George W. and William P., two 
entire sections of land, lying and situate in the Marine settlement, and state 
of Illinois; also, the north-east quarter section twenty-three, north-west 
quarter section twenty-four, south-east quarter section eleven, north-west 
quarter section twenty-four, north-east quarter section thirty-four, south-
west quarter section thirty-one, north-east quarter section thirty-one, in 
township eight south, range five, situate in the state of Illinois; also, the 
south-east quarter section thirty, township nine, north-west quarter section 
three, township ten, range three west, and the fractional section nine, 
township nine, range five west; all situated in the state of Illinois, and 
patented to the said John Rice Jones: to have and to hold the said several 
tracts or parcels of land above described to the said George W. and William P. 
Jones, their heirs and assigns, forever. In witness whereof, he, the said John 
Rice Jones, has hereunto subscribed his hand and affixed his seal, the day and 
year first above mentioned.

"John Rice Jones, (seal.)
"Sealed, signed and delivered, in presence of B. G. Farrar,
D. V. Walker,
G. F. Strother.

"State of Missouri,) ss County of St. Louis,)
"Personally appeared before me, the undersigned, notary public for the county 
of St. Louis, and state aforesaid, duly commissioned and sworn, residing at 
the city of St. Louis, George P. Strother and B. G. Farrar, subscribing 
witnesses to the foregoing instrument, who severally acknowledged that the 
*said John Rice Jones signed [*307] his name to the above in their presence, 
and further acknowledged the same to be his act and deed, for the uses and 
purposes therein expressed. In testimony whereof, I have hereunto set my hand 
and affixed my notarial seal, this 8th day of June, 1824.
"D. G. Augler, N. P. (seal")

In the month of May, June or July, 1834, William P. Jones died intestate, 
leaving no issue, and defendant had been, since the conveyance of the said 
John Rice Jones, to the time of the death of the said William P. Jones, the 
agent of the said William P. Jones, in and about the premises in the Marine 
settlement; and he had, of his own means, advanced large sums of money to the 
said William P. Jones, in his life time; and after his death, had paid off, 
out of his own funds, several debts contracted by said William, in 
consideration whereof the other heirs of the said William P. Jones surrendered 
to defendant their claims to his estate, and the right of this defendant 
thereto was fully recognized by the other heirs, and he paid a full 
consideration to his brother, William P. Jones, for his interest in those 
sections. 

Defendant, and his brother, William P. Jones, claimed, in fee, all of sections 
fourteen and twenty-three. The deed from John Rice Jones, of 31st January, 
1824, to defendant and his brother, William P. Jones, was made in good faith, 
etc., and with the full conviction that he left more property clear than 
sufficient to meet all his liabilities; and that at the time of the execution 
of the deed, the estate of the said John Rice Jones was more than enough fully 
to pay all his just debts and legal liabilities, and in addition, to pay off 
any claim that the said Pierre Choteau could establish against his estate; and 
defendant is informed that there is now in Missouri, in the hands of the 
administrator there, sufficient assets to pay all demands that can be 
established, without the sale of any lands in the state of Illinois. He never 
had notice of the suit on the bond made by John Rice Jones, as the 
administrator of Thomas Brady, or that John Rice Jones had ever administered 
upon his estate, or that Pierre Choteau had over paid any money whatever, as 
the security of the said Jones, for any cause. Admits he was party to the 
action brought by Pierre Choteau against the estate of John Rice Jones, in 
Randolph circuit court; and while defendant was administrator, no claim was 
presented for settlement, against  said estate, except that of Pierre Choteau. 
Defendant has had no personal notice of the appointment of the said Harvey 
Clendinnin, as administrator of the estate of the said John Rice Jones, 
deceased, or of any sales made by him. Admits he did, on the 25th February, 
1833, procure a tax title to sections fourteen and twenty-three; but denies 
that he committed fraud thereby, or that he doubted the title he had procured 
from his father, and wished the same strengthened, or feared the claim of the 
complainant, but, simply, because his tax agent advised him so to do, to cut 
off an older tax title that had been, or was about to be, procured by others. 
Admits he did, as charged in the bill, sell the portions of said sections 
fourteen and twenty-three. He now owns the south half of the south-east 
quarter of section fourteen, and the east half of section twenty-three, 
township four north, range seven west, in Madison county, and state of 
Illinois. Denies that he had any personal notice of the doings of H. 
Clendinnin, as the administrator de bonis non of the estate of John Rice J 
ones, deceased, although he might have been constructively notified of the 
fact.

B. C. Stanton, Matthew C. Garey, S. Carrollton, Jesse Bartlett, O. S. Balster, 
D. Ground and Thomas Ray, have also filed their separate and several answers, 
as follows, to wit: Matthew C. Garey, S. Carrollton, Jesse Bartlett and Thomas 
Ray, have severally pleaded that they are innocent purchasers, without notice, 
of portions of said lands, from said George W. Jones; and accompanied their 
respective pleas with answers generally denying all fraud, etc. B. C. Stanton, 
O. S. Balster and D. Ground, filed their separate answers, setting forth that 
they are, severally, innocent purchasers of portions of the land, without 
notice, from George W. Jones, and stating their ignorance of most of the main 
facts set forth in the bill. To these several pleas, answers, etc., the 
complainant filed a general replication. 

The bill was taken for confessed against the other defendants, on their 
failure to file answers.

The case was taken to the Jersey circuit court, and, on the final hearing, all 
the important allegations of the bill, not admitted by the answers of the 
defendants or the agreements of counsel, were proved by certified copies of 
deeds, records and documents made part of the record in this case. It was also 
clearly shown by a certified copy of the records of the county court of 
Washington county in the state of Missouri, containing the inventories; sale-
bills and reports made by Myers P. Jones and Augustus Jones, the 
administrators of the estate of John Rice Jones, deceased, in that state, 
including the sale of lands, and of the proceedings in the administration, 
that the estate of said deceased, there existing is insolvent, though the 
defendants attempted to prove otherwise by several witnesses, by their 
opinions, etc., to the contrary. The defendants named as the purchasers of 
parts of the lands from George W. Jones, proved their several purchases, as 
set forth in their respective answers; and Stanton and Ray proved their 
purchases of Garey, and Garey and Balster also proved their several purchases 
from Anderson, as set forth in their respective answers — and the payment of 
the purchase money — and that they severally paid fair prices for the lands. 
The value of certain lands in Randolph county sold under the order of the 
circuit court, was also proved by the defendants.

Upon the hearing of the case, Lockwood, justice, dismissed the bill, and 
ordered that each party pay his own costs; from which decision the complainant 
has appealed to this court, and insists on a reversal of the decree in the 
court below, and the entry of a decree in his favor on the case made by the 
bill, answers, exhibits, proofs and evidence embodied in the record.

David J. Baker, for appellant: 1. The decree, or license, for the sale of the 
lands in controversy, has been duly made by a court having general and 
exclusive jurisdiction in the case; and the questions of fact, which the court 
must necessarily have decided in making the decree, are res judicata, and 
cannot be again raised on the present occasion; and it was not competent for 
the court to inquire whether or not there was property of John Rice Jones, 
deceased, in other states or countries, wherewith his debts might have been 
paid. As the court has found that there was a deficiency of personal assets, 
and that a sale of these lands was necessary to pay the debts of the deceased, 
and as no fraud is shown on the part of Harvey Clendinnin, the administrator, 
either in obtaining the decree or in the making the sale under it, the 
necessity of ordering the sale can not be inquired into in this case. The 
general principle is, that a judgment at law, or a decree in chancery, is 
conclusive of all the facts which must necessarily have arisen in the 
controversy. 1 Johns. C. R., 543; 4 Scammon, 364; 3 Gilman, 626; 6 Wheaton, 
109. The principle that the judgment or decree of a court possessing competent 
jurisdiction, shall be final as to the subject matter thereby determined, is 
conceded by all, and can admit of no doubt; the principle, however, extends 
further: it is not only final as to the matter actually determined, but as to 
every other matter which the parties might litigate in the cause, and which 
they might have decided. Le Guen v. Gouverneur & Kemble, 1 Johns. Cases, 436, 
and cases there cited. A surrogate order of sale in New York, of real estate 
for the payment of debts, can not, ordinarily, be impeached collaterally, even 
for fraud. 20 Wend. R., 241. If G. W. and W. P. Jones were aggrieved by the 
order or decree, they should have taken an appeal. Statutes 1833, "Wills," 
etc., 104; 12 Wend., 533; Jackson ex dem. M'Fail v. Crawford.

2. The purchasers of these lands, and the complainant, are strangers, and had 
no agency in obtaining the order of sale, and as no fraud is brought home to 
them, or notice of any, they can not be injuriously affected by the condition 
of the estate of John Rice Jones, deceased: they were not bound to look beyond 
the order of sale by the court.

The principle is, that a purchaser of land, under a decree of court granting a 
license to sell, is not bound to look beyond the decree. Grignon's lessee v. 
Astor, 2 How. U. S., 319; 5 Blackf., 328; 2 Peters, 169; 11 Mass., 227; 
Coleman v. M'Kinney, 3 J. J. Marsh., 248; 7 Mass., 292; Leverett v. Harris.

3. The deed from John Rice Jones to his sons, George W. Jones and William P. 
Jones, is a fraudulent conveyance, and therefore absolutely null and void, at 
initio, as to pre-existing creditors. The principle laid down is, that a 
voluntary conveyance, when the grantor is indebted at the time of its 
execution, is fraudulent; and that all fraudulent conveyances are void as to 
those whom they were intended to defraud. 1 Fonb., B. 1, ch. 4, sec. 12; 
Story's Eq. Juris., secs. 352, 382; Revised Statutes 1833; Newland on Con., 
ch. 23, pp. 383, 387; 2 Kent, 440, and following; 2 Black., 296, and note. A 
conveyance is fraudulent under the statute of 13 Eliz., ch. 5, where the same 
is voluntarily made, the grantor being indebted at the time it was executed. A 
fraudulent intent will be presumed, from the fact that the party conveying was 
indebted at the time the conveyance was executed. Gilmore v. N. Am. Land Co., 
Peters' C. C. R., 460; Sands et al. v. Codwise et al., 4 Johns., 536. Every 
conveyance not made on consideration valuable in law, is void as to pre-
existing creditors. Sexton v. Wheaton, 8 Wheat., 229; 1 Amer. Leading Cases, 
52. A voluntary conveyance as to pre-existing creditors is, per se, fraudulent 
and void. Voluntary conveyances are void as to creditors; and in relation to 
pre-existing debts, neither the amount of the debts, the value of the 
property, nor the intention, is material; but the conveyance is fraudulent, 
perse. Hanson v. Buckner, 4 Dana, 251; Miller v. Thompson, 3 Porter, 198, 217. 
In the case of Read v. Livingston, 3 John. C, 481, it was declared that the 
rule had no qualifications whatever; and that a voluntary conveyance is 
fraudulent in respect to existing debts, by presumption of law, without regard 
to the amount of the debts, the extent of settlement, or the circumstances of 
the party. See, also, Moore v. Spence, 6 Jud. Ala.,506; Castillo v. Thompson, 
9 Jud. Ala., 937; O'Daniel v. Crawford, 4 Devereaux, 197; Chapin v. Pease, 10 
Connecticut, 69; Parsons v. M'Knight, 8 N. H., 35; Gunn v. Butler, 18 Pick., 
248; How v. Ward, 4 Greenleaf, 195; 1 Dana, 532. In all cases of fraudulent 
conveyances, as to pre-existing creditors, fraud is a question of law, and not 
of fact. Beers v. Botsford, 11 Conn., 369; Sherwood v. Marwick, 5 Greenleaf, 
295; Gardner Bank v. Wheaton, 8 Greenleaf, 373. A gratuitous conveyance is 
always void as against creditors. Roberts on Fraudulent Conveyances, 450-1-2, 
and 591-506. The relation of debtor and creditor between Pierre Choteau and 
John Rice Jones commenced at the time of executing the administration bond, at 
least so as to entitle the former to contest the validity of the deed to the 
sons of the latter, 4 Greenleaf, 195, Howe v. Ward; also Twyne's case, 2 Coke, 
80.

4. An administrator, having obtained license from the proper court, may sell 
lands fraudulently conveyed by the intestate during his life, and out of the 
proceeds pay the debts of his creditors. The principle as laid down is, that 
where a man indebted makes a voluntary conveyance to a child, without a 
consideration, and dies indebted, such conveyance is fraudulent, and the lands 
conveved shall be considered as part of his estate after his death, for the 
benefit of his creditors. Townshend v. Windham, 2 Ves., 10. A fraudulent 
estate, created to defeat creditors, is as no estate in judgment of law. 
Jackson v. Burgott, 10 Johns., 457, (per curiam,) and there cited Fermor's 
case, 2 Coke, 77, and Twyne's case, 2 Coke, 80. In the case of the Manhattan 
Co. v. Osgood, reported 15 Johns., 102, Yates, J., said: "If lands were 
conveyed voluntarily, and without consideration, by the defendant, she being 
indebted at the time, it was illegal. If such conveyances are fraudulent and 
void, the fee remains in the defendant; and as to her creditors, it was the 
same as though she had never convoyed" (and the case there cited). A voluntary 
conveyance, by a grantor, who at the time of making it is insolvent, is void 
as respects creditors; and the land, after the death of the grantor, is assets 
by descent or devise, in the hands of his heirs, or the devisees of the 
residuum of his estate. Ibid. In the case of Drinkwater v. Drinkwater, 4 
Mass., 354, Parsons, J., delivered the opinion of the court: "That when the 
estate is not insolvent, a creditor may have the benefit of the estate 
fraudulently conveyed, in two ways: he may recover judgment against the 
administrator, and may extend his execution on the estate; or, the 
administrator having obtained license, may sell the estate at public auction, 
and out of the proceeds may satisfy the creditors. If the lands are liable to 
the payment of the intestate's debts, the administrator may lawfully sell them 
on license, whether they are in the possession of the heirs, or of his alienee 
or disseizor; for no seizin of the heir, or of the alienee, or of his 
disseizor, can defeat the naked authority of the administrator to sell on 
license."

In Connecticut, the courts have determined, "that property fraudulently 
conveyed, is assets, which the administrator is bound to inventory, if he 
knows of it, and is entitled to recover." Minor v. Mead, 3 Conn., 289; Rooth 
v. Patrick, 8 Conn., 106; 11 Conn., 283. An administrator can not sell real 
estate for the payment of debts, unless the intestate died seized of it, or 
had fraudulently conveyed it away, or was colorably and fraudulently disseized 
of it. Willard v. Nason, 5 Mass., 240; Drinkwater v. Drinkwater, 4 Mass., 354. 
An executor or administrator has no interest in the real estate of the 
deceased; he can not intermeddle therewith; he can not maintain an action to 
recover possession or seizin of real estate; nor can he defend in a real 
action. A recovery in a real action can not prejudice the creditors; his right 
to sell on license remains the same after as before the recovery. Drinkwater 
v. Drinkwater, 4 Mass., 354; Henshaw v. Blood, 1 Mass., 35; Gibson v. Farley, 
16 Mass., 280; Stearns v. Stearns, 1 Pickering, 157; Bridgewater Co. v. 
Bookfield, 3 Cowen, 299; Dean v. Dean, 3 Mass., 258; also 5 Mass., 240. An 
administrator is a trustee to creditors, and may avoid a fraudulent 
conveyance, for the benefit of such creditors. Thompson v. Palmer, 2 
Richardson's Eq., 32; Neal v. Haythrop, 3 Bland, 551; Gibbons v. Peeler, 8 
Pick., 254; Holland v. Cruft, 20 Pick., 321; White v. Brown, 2 Car. Law Rep., 
449; Boston Bank v. Minot, 3 Mot., 507., In Pennsylvania, it is settled, that 
the administrator of an insolvent's estate may set aside a fraudulent 
conveyance, as he is in such a case a trustee for creditors. Buchler v. 
Gloninger, 2 Watts, 226; Stewart v. Kearney, 6 Watts, 453; Welsh v. Bekey, 1 
Pennsylvania, 57; Englebert v. Blanjot, 2 Wharton, 240. The same principle is 
now held by the courts in New York. Babcock v. Booth, 2 Hill, 182; Brownell v. 
Curtis, 10 Paige, 210. The administrator is the representative of the 
creditors, etc., 11 Conn., 288. He is trustee for the creditors, 12 Wend., 
543; 3 Bac. Ab., "Fraud Con." There is no privity between an administrator and 
an heir or devisee. 1 Munf., 446; 2 Peters, 523. Property of a debtor, which 
might be levied on and sold under execution, may be sold on license or order 
granted to his executor or administrator. 5 Ohio R., 71, Brice v. Myers et al. 
The voluntary donee may be charged as executor de son tort, if he take 
possession of the goods after the decease of the donor. Rob. on Fraud. Con., 
593-4-5, and cases there referred to. When he takes possession after grant of 
administration or probate, the rightful administrator or executor may sue for 
the goods, or they may be treated as assets in his hands. 1 Ves., Peacock v. 
Monk. One of the badges, evidence of the fraud in the conveyance, is 
mentioned, its being executed by the grantor on the same day with his will. "A 
deed, with a consideration merely nominal, will, as it respects creditors, be 
treated as voluntary." 4 Wash. C. C. R., 133, Ridgeway v. Underwood; see 
Gooch's case, 3 Coke, part 4, p. 60: "for fraud and covin, because they are 
odious, are so privately and secretly hatched in a hollow tree, in arbore cava 
et opaca, and so artificially covered and concealed, that the party grieved 
has no means to find or know it," etc.

5. The deed of conveyance from John Rice Jones to George W. Jones and William 
P. Jones, is void as to the lands in Madison county, because of the 
uncertainty in the description; which is, "two entire sections of land, lying 
and situate in the Marine settlement, and state of Illinois."

6. The purchasers from George W. Jones are not innocent purchasers without 
notice. The law fastens notices upon them, and adjudges them to be cognizant 
of the character of the title of their grantor. They are presumed to have 
known that the lands given by John Rice Jones, at his death, to his sons, were 
subject to the payment of his debts. The general rule is, that whatever is 
sufficient to put the party upon inquiry, is good notice. Where a party has 
knowledge of the facts, he has notice of the legal consequence resulting from 
those facts. The Ploughboy, 1 Gallis., C. C. R., 41; Pratt v. St. Clair's 
heirs, 6 Ohio Rep., 93; 2 Sugden on Vendors, 335, 336, ch. 17. No principle is 
better established, than that a purchaser must look to every part of the title 
which is essential to its validity. Brush v. Ware, 15 Peters, U. S., 93. When 
a purchaser can not make out his title but through a deed which leads to a 
fact, he will be effected with notice of that fact. Mertins v. Joliffe, Amb., 
311. In all cases where a purchaser can not make out a title but by a deed 
which leads to another fact, he shall be deemed cognizant of that fact. Dunch 
v. Bennet, 2 Ch. Cas., 246; 1 Story Eq. Juris., ch. 7, sec. 399; 2 Fonb. Eq., 
B. 2, ch. 6, sec. 3, and note m. That which shall be sufficient to put the 
party upon inquiry, is notice. 13 Ves., 120. Also, see Dunch v. Kent, 1 Vern., 
319.

The law requires reasonable diligence in a purchaser to ascertain any defect 
of title. But when such defect is brought to his knowledge, no inconvenience 
will excuse him from the utmost scrutiny.

He is a voluntary purchaser; and having notice of a fact which casts a doubt 
on the validity of his title, the rights of innocent persons are not to be 
prejudiced through his negligence. Brush v. Ware, 15 Peters, U. S., 93; 
Jackson v. Livingston, 10 Johns., 374; Willis v. Bucher, 2 Binn., 455; see 1 
Hoffman's Ch. Rep., 153. Lis pendens is notice to a purchaser. 1 Story Eq. 
Juris., chap. 7, sec. 405; 2 Sug. on Vendors, chap. 17, sec. 3. Everyman shall 
be presumed to have notice of a decree whereby his own title is affected. 
Fonbl. Eq., B. 3, ch. 3, sec. 1, note et seq.; 1 Story Eq. Juris., sec. 406. A 
deed fraudulent on the part of the grantor may be avoided, though the grantee 
to a bona fide purchaser, and ignorant of the fraud. 2 Johns. Ch. E., 41, 42, 
et seq. A purchaser without notice from a voluntary grantee, is not protected. 
2 Fonbl. Eq., 212, n. "The statute 13 Eliz. was made to protect creditors from 
fraudulent conveyances; and the original deed being utterly void as to them, 
the grantee can make no valid conveyance, for, so far he has no title." The 
proviso in the act applies only to the original deed and saves it when made a 
bona fide purchaser, for a valuable consideration, however fraudulent the 
intention of the grantor. But such bona fide conveyance by the fraudulent 
grantee, is not so protected; and the policy of the act would be defeated by 
such extension, etc. If the debtor himself sells fairly, he acquires means to 
discharge his debts, and it may be presumed he will so apply them. If his 
fraudulent grantee be enabled to sell, the grantor can not call those proceeds 
out of his hands, and the grantee can either appropriate them to his own use, 
or to any such trust upon which the conveyance may have been made.

7. The fact that the deeds of conveyance for the lands in controversy, from 
Harvey Clendinnin, the administrator of John Rice Jones, deceased, to Pierre 
Menard, jr., and to the complainant, were not recorded in Madison county 
before those from G. W. Jones to certain of the defendants, is not material, 
because: The claimant does not derive title from G. W. Jones, or any one 
claiming under him. Lessee of Sicard v. Davis et al, 6 Peters, 124; Rev. 
Statutes 1833, sec. 5. The recording acts apply only to such as have obtained 
a subsequent deed from the same person who executed a prior one. Rev. Laws of 
1833, page 587, sec. 5. Where an executor sold and conveyed by deed testator's 
land, by a power derived from the testator's will and afterwards the heir 
entered, and sold by deed the same land, without notice of the executor's sale 
and conveyance, it was adjudged that the last conveyance was void, as the heir 
never had any estate, which he could dispose of, and that the registry of the 
deed was immaterial. 1 U. S. Dig. Supp., 800, sec. 221; Herbemont v. Bostick, 
2 Brevard, 435. George W. Jones had no title to convey away, as against the 
creditors of John Rice Jones, deceased," or as against the purchasers under 
the order of the circuit court, at the sale made by his administrator. The 
recording act applies only to the purchasers of the title, asserted by virtue 
of the conveyance, and to creditors of the party who made it. The same general 
terms are applied to creditors; and to purchasers and surety the word 
creditors can mean only creditors of the vendor. Dicit Marshall, 6 Peters, 139.

8. The purchase of the lands by George W. Jones, at the sale made by the 
auditor of state, January 19, 1832, on account of the non-payment of the taxes 
assessed for 1832, did not change or strengthen his title. He held by the same 
title after as before such purchase. Douglass v. Dangerfield, 10 Ohio Rep., 
152; Pratt v. St. Clair's heirs, 6 Ohio, 93; Stiver v. Stiver's heirs, 8 Ohio, 
217; 4 Johns. Rep., 565, Sands et al. v. Codwise et.al.

9. The court of chancery will entertain jurisdiction of a case where it is 
sought to set aside a deed, or have cancelled a deed or instrument that may 
throw a cloud of suspicion over the title or interest of the complainant. 2 
Story Eq. Juris., secs. 694-5-6-8, 700-702; 2 Blackf., 295, Freakes v. Brown. 
A purchaser at sheriff's sale is not a subsequent purchaser, under 27 Eliz., 
and on that ground entitled to question a prior voluntary conveyance, but as 
the creditor under 13 Eliz., and stands in the place of the creditor upon 
whose judgment the land was sold. Lessee of Ridgway v. Underwood, 4 Wash. C. 
C. R., 129. A purchaser under a judgment creditor is entitled to the benefit 
of the statute of frauds. 2 Johns. Ch. R., 50, Hildreth v. Sands. When the 
statute gives the principal remedy, it gives the incident remedy. "A purchaser 
at a sheriff's sale under the judgment of a creditor, is entitled to the 
benefit of the statute of frauds, equally as the creditor himself, and may 
support a bill to set aside a previous fraudulent conveyance." 14 Johns. R., 
493, Sands v. Hildreth. In the case of Roberts v. Anderson, 3 Johns. Ch. R., 
377-8-9, this doctrine is fully considered and recognized as the established 
and unquestionable construction of the 13 Eliz.

Wm. Martin, with whom was Seth T. Sawyer, for appellees: A purchaser for a 
valuable consideration, from a voluntary grantee, will hold as against a 
grantee from the first grantee, for a full consideration. 3 Johns. C. R., 377-
8; 18 Johns. R., 515 and 543. To set aside a deed for fraud against creditors, 
the bill must allege fraud and insolvency, and a want of other property with 
which to pay the creditor. Which fact must be admitted or proved. The 
voluntary deed from John Rice Jones to his sons, was good as a voluntary deed. 
6 Cond. U. S. R., 270; 5 Wend., 588. The grantor must be insolvent when the 
voluntary deed was made, and to impeach it, fraud must be charged and proved. 
6 Paige's C. R., 62 and 526; 4 Wendell, 300; 7 ibid, 437; 1 Pet. Digest, 369. 
sec. 91; ibid, 82, sec. 53; 2 Pet. Digest, 367, sees. 71, 72.

An administrator can not take an order to sell land which had been 
fraudulently or voluntarily conveyed away by the intestate. 7 Johns., 160; 1 
Brockenbrough, 500; Yelverton, 196; 1 Salkeld, 318; 1 and 2 Vermont, 333; 4 
Blackford, 141 to 145; 6 Harris and Johnson, 61. To subject land voluntarily 
conveyed to the payment of the debts of creditors, a bill should be filed, 
praying that the heirs or grantees should pay the creditors the value of the 
lands conveyed, or that the lands shall be sold for that purpose. 2 
Brockenbrough, 132-3; 5 Ohio, 79; 1 Barber and Harrington's Digest, 343, sec. 
26.

This bill, which is a bill by a purchaser, under the administrator, to set 
aside a voluntary deed, and not to subject the lands to the payment of debts, 
can not, on the above principles, be sustained.

Treat, C. J. We are not prepared to decide that the deed from John Rice Jones 
to George W. Jones and William P. Jones, was void, as respects the premises in 
question, because of uncertainty in the description. There are references in 
the deed by which the lands can be ascertained and distinguished. It is stated 
in the conclusion of the description that the lands are "all situated in the 
state of Illinois, and patented to the said John Rice Jones." These words must 
be understood as applying to all of the lands intended to be conveyed. If so, 
the description, unconnected with the other lands included in the deed, 
reads, "two entire sections of land, lying and situate in the Marine 
settlement, and state of Illinois, and patented to the said John Rice Jones." 
This description points directly to the evidence by which the two sections can 
be located. It is not pretended but that the Marine settlement was a locality 
well known when the deed was executed, and that the lands in dispute were 
situated within its limits. By an examination of the proper records, it could 
be ascertained what lands in that settlement were patented, to the grantor. If 
but two entire sections were there entered by him, the precise locality and 
description of the lands designed to be granted would be rendered definite and 
certain. If no lands were entered by him in the settlement, or, if any, more 
than two full sections, it might be that the grant, as to the two sections of 
land, would be void, because no locality could be given them consistent with 
the description and references contained in the deed. There is no allegation 
in the bill that these particular sections were not patented to the grantor, 
nor any allegation denying an intention on his part to convey them. On the 
contrary, the bill distinctly states that they were patented to him. The 
complainant makes no case requiring the defendants to prove that these 
sections were designed to be embraced by the grant. The deed must be 
considered as including the lands in controversy.

But the deed, as clearly appears on its face, was a voluntary conveyance. 
Although valid between the parties, it was fraudulent and void as against pre-
existing creditors of the grantor. Pierre Choteau was such a creditor, within 
the true intent and meaning of the statute. The liability which resulted in 
the judgment against him as the security of the grantor, was incurred several 
years before the execution of the deed. The relation of debtor and creditor 
between principal and surety, so as to entitle the latter to avoid a voluntary 
conveyance made by the former, commences at the date of the obligation by 
which the surety becomes bound, and not from the time he makes payment. Howe 
v. Ward, 4 Greenleaf, 195; Thompson v. Thompson, 19 Maine, 244; Carlisle v. 
Rich, 8 New Hampshire, 44. The surety had an undoubted right, on recovering a 
judgment against the administrator, which the personal estate to be found in 
this state was insufficient to pay, to proceed in equity to set aside the 
conveyance, and subject the lands to the payment of the judgment. M'Dowell v. 
Cochran, ante, 31.

It is contended that an administrator may, for the benefit of creditors, 
impeach a voluntary conveyance made by his intestate. We are satisfied that 
this position can not be sustained. An administrator is authorized by statute, 
after he has exhausted the personal estate in the payment of debts, to apply 
to the circuit court, and obtain leave to sell so much of the real estate of 
which the intestate "died seized," as will be sufficient to discharge the 
residue of the debts. John Rice Jones did not die seized of the premises in 
question. The title had for ever passed out of him. The deed was binding upon 
all the world but creditors, and subsequent bona fide purchasers. They alone 
could defeat the estate of the grantees. The deed was good against the heirs 
and personal representatives of the grantor. The former could take no greater 
estate than their ancestor had, the latter could assert no greater right than 
his intestate might have done. An administrator is not the agent or trustee of 
creditors, for the purpose of avoiding a fraudulent conveyance. He is the 
representative of the intestate, and succeeds to his rights and interests. He 
stands in his place, and is bound by his acts. Whatever was binding on the 
intestate is binding on his administrator. He is clothed with no greater power 
than the intestate possessed. He can no more call in question a voluntary deed 
than could the intestate himself. His powers, in the absence of statutory 
regulation, are confined to the personal estate. His authority to sell the 
real estate is derived from statute, and that restricts him to real estate of 
which the intestate was seized at the time of his death; in other words, to 
such real estate as the intestate, while in life, had the right to alien and 
convey. The following cases are direct to the point, that an administrator can 
not take advantage of a fraudulent conveyance made by his intestate. Hawes v. 
Leader, Yelverton, 196; Osborne v. Moss, 7 Johnson, 161; Dorsey v. Smithson, 6 
Harris and Johnson, 61; Lassiter v. Cole, 8 Humphrey, 621 Commonwealth v. 
Richardson, 8 B. Monroe, 81; Peaslee v. Barney, 1 D. Chipman, 331; Bank v. 
Burke, 4 Blackford, 141. The decisions in Massachusetts, to the effect that an 
administrator may, as trustee of creditors, obtain license to sell real estate 
fraudulently conveyed by his intestate, are founded on a statute expressly 
declaring that real estate, thus conveyed, shall be liable for the payment of 
the debts of the grantor, and may be recovered and applied in the same manner 
as the lands of which he died seized, in case the personal estate is not 
sufficient to discharge the debts. See the statutes of Massachusetts for 1805, 
ch. 90, sec. 5; and Martin v. Root, 17 Mass., 222. The cases of Babcock v. 
Booth, 2 Hill, 181, and Brownell v. Curtis, 10 Paige, 210, are also founded on 
special provisions of statute. Those decisions all show that, independent of 
the peculiar statutes on which they are based, an administrator possesses no 
power to avoid the voluntary deed of his intestate. The courts in Connecticut 
decide that an administrator has the power, but the weight of authority is 
decidedly the other way.

But these general remarks, respecting the powers of an administrator, must be 
understood as applicable to the case of a direct proceeding or attempt on his 
part to set aside a fraudulent conveyance, and not to cases where creditors 
and purchasers have a right to conclude that the intestate died seized of the 
premises, which the administrator has been licensed to sell. In this case, it 
does not follow that the purchasers at the sale by the administrator, acquired 
no title as against the grantees of John Rice Jones. This is not a contest 
between the administrator and those grantees, in which the former is 
attempting to avoid the voluntary conveyance, and subject the lands to the 
payment of the debts of the grantor. The deed was not so acknowledged or 
proved as to be entitled to be recorded. By the act of the 19th of February, 
1819, conveyances executed in another state, of lands situated in this state, 
were required to be acknowledged by the grantor, or proved by one of the 
subscribing witnesses, before a judge of a superior court, a mayor or chief 
magistrate of a city, or clerk of a county court, and certified under the 
common seal of the city or county, and recorded within twelve months after the 
execution thereof. The act of the 30th of December, 1822, authorized 
conveyances made in another state, and acknowledged or proved in conformity to 
the laws of such state, to be admitted to record in this state. The deed was 
not acknowledged or proved according to the provisions of the law of 1819. 
That act conferred no authority on a notary public to take and certify the 
acknowledgment or proof. But if the notary had the authority, his certificate 
was clearly defective. He did not certify that the execution of the deed was 
proved by the oaths of the subscribing witnesses; but merely stated that the 
subscribing witnesses appeared before him, and acknowledged that the grantor 
executed the deed in their presence. Nor is there any evidence in the case to 
show that the execution of the deed was proved in pursuance of the laws of 
Missouri, so as to entitle it to be recorded under the act of 1822. The deed, 
then, was not properly admitted to record. The registration of an 
unacknowledged deed gives it no additional validity or effect. It is not even 
implied notice of the existence of the deed. The grantees, therefore, failed 
to comply with the requisitions of the registry laws, so as to give the 
administrator, creditors and purchasers notice of the grant to them. The 
personal estate of the grantor was not sufficient to discharge the claims 
established against the administrator; and the title papers of the intestate 
and the public records showed that he died seized of the lands in question. In 
this state of case, the administrator made application to the circuit court 
for an order to sell the premises. The grantees were heirs of the intestate, 
and, as such, had notice of and were parties to the proceeding. They failed to 
appear and disclose or assert any claim to the lands. Creditors and purchasers 
had the right to conclude, and to act on the conclusion, that the lands 
belonged, to John Rice Jones at the time of his death; and that George W. 
Jones and William P. Jones had no other interest therein than as heirs at law 
of their father. Under all of these circumstances, it would be grossly 
inequitable to allow them now to set up the voluntary deed against purchasers, 
who paid a full consideration for the lands, without any notice, actual or 
constructive, of the prior grant. If the complainant had purchased the 
premises from the grantor, for a valuable consideration, and without notice of 
the voluntary grant; or, if subsequent to the death of the grantor, he had, in 
like manner, purchased from his heirs, there could not be a question but he 
would hold the lands as against the voluntary grantees. And this case, in 
principle, is not distinguishable from those. The sale is not sustained on the 
ground that an administrator may avoid a fraudulent grant, but for the 
protection of honest creditors and bona fide purchasers. Their rights ought to 
be regarded as more sacred than those of grantees who paid nothing for the 
lands, and who failed to register their title until purchasers had paid the 
consideration money, and the judgment of the creditor had been satisfied.

The purchasers at the sale of the administrator succeeded to all of the rights 
of the creditor, in fraud of whom the conveyance was made; and they are 
entitled to the benefit of the statute of frauds equally as the creditor 
himself. Hildreth v. Sands, 2 Johnson's C. R., 36; Ridgway v. Underwood, 4 
Washington's C. C. R., 129; Sands v. Hildreth, 14 Johnson, 493.

The purchase of a portion of the land by George W. Jones, at a sale for taxes, 
did not strengthen his title. That purchase was made prior to the sale by the 
administrator. He was then one of the owners of the land, and, as such, bound 
to pay the tax assessed upon it. The purchase was but a mode of paying the 
taxes legally chargeable against him. He admits in his answer that he suffered 
the land to be sold, and bid it in for the purpose of defeating an older tax 
title, and not with a view of acquiring any new title. A purchaser at a tax 
sale of land, in which he has an interest as heir, acquires no additional 
title. Piatt v. St. Clair's heirs, 6 Ohio, 93. A party, who claims title to 
land which is listed for taxation in his name, acquires no greater interest by 
permitting it to be sold for taxes and purchasing it himself. Douglass v. 
Dangerfield, 10 Ohio, 152.

In our opinion, the complainant has a clear right to the relief claimed, as 
against the grantees of John Rice Jones. But omitting to put on record in due 
time the conveyance from the administrator, he can not assert title against 
the grantees of George W. Jones, to the extent of the interest he apparently 
had in the lands. It is now the settled doctrine in this country, that a bona 
fide purchaser, for a valuable consideration, and without notice, either from 
a fraudulent grantor or grantee, shall be protected. He takes the estate 
discharged of the fraud that previously infected the title. 4 Kent, 464; Bean 
v. Smith, 2 Mason, 252; Anderson v. Roberts, 18 Johnson, 515; Oriental Bank v. 
Hoskins, 3 Metcalfe, 332. The act of the 21st of July, 1837, provided that 
deeds, recorded in the proper county, should be deemed and taken to be notice 
to subsequent purchasers and creditors, whether the same were acknowledged or 
proved according to the laws of the state or not; and a proviso declared, the 
provision applicable to deeds theretofore admitted to record. The registration 
of the deed from John Rice Jones became operative for the purposes of notice, 
from the passage of that act. It is not questioned but that the grantees of 
George W. Jones were purchasers for valuable consideration. It is true, the 
deed from John Rice Jones appeared on its face to be a voluntary conveyance; 
and these purchasers were chargeable with knowledge of the law, that such a 
deed might be avoided by pre-existing creditors of the grantor, or subsequent 
bona fide purchasers from him. But all of them, except Anderson, purchased 
more than thirteen years subsequent to the execution of the voluntary deed, 
and the death of the grantor, and several years after the sale and conveyance 
by the administrator, pursuant to a license granted in another county; and 
Anderson purchased subsequent to the sale of the administrator, and more than 
eleven years after the execution of the fraudulent conveyance. And all of 
their purchases were made and their conveyances recorded before the registry 
of the administrator's deeds. They had a clear right to conclude, from this 
length of time and the state of the records, that there were no antecedent 
creditors of John Rice Jones, and no subsequent purchasers from him or his 
administrator. They can not be charged with notice of the application by the 
administrator for leave to sell the lands, for that proceeding was had in 
another county, and before they claimed any interest in the land. The 
conveyances from the administrator should have been recorded in Madison 
county, in order to protect the purchasers from him against the alienations of 
the voluntary grantees. The act of the 18th of January, 1833, in force when 
all of the conveyances were made but the one from John Rice Jones, declared 
that, "all deeds and title papers, of whatever description, for lands lying in 
this state, whether owned by residents or non-residents, shall be recorded in 
the county where the lands are situated;" and "shall take effect and be in 
force from and after the time of filing the same for record, 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 in the 
county where the said lands may lie." Administrator's deeds would seem to be 
clearly within the letter of this statute. They are certainly within the 
reason and spirit of its provisions. An order may be obtained, in the county 
where administration is granted, for the sale of the lands of an intestate, 
situated in any part of the state. If this class of conveyances is not 
required to be recorded, a purchaser from heirs, at any distance of time after 
the death of the intestate, has no security that his title may not be defeated 
by the production of an administrator's deed, founded on an order of sale 
granted in a remote county. In the county where the order of sale is made, 
there would not seem to be the same necessity for the deed to be registered; 
and the record of the proceedings might, perhaps, there be held to be notice 
to a purchaser. Upon this point, however, we must be understood as expressing 
no opinion.

As to this branch of the case, it is a contest between a purchaser succeeding 
to the rights of the creditors of the fraudulent grantor, and bona fide 
purchasers from the fraudulent grantee. They are all equally meritorious and 
innocent, hut the law in such case wisely favors the most vigilant. The one 
who first places his title on record must prevail. George W. Jones, by virtue 
of the voluntary deed, became seized of an undivided half of the lands; and, 
on the death of his brother, without issue, he took as one of his heirs at 
law, one-seventh part of the other moiety. The purchasers from him are 
therefore entitled to hold nine-fourteenths of the lands embraced in their 
deeds.

The result of our opinion is, that the complainant is entitled to a decree 
setting aside the voluntary deed as to the whole of the lands not aliened by 
George W. Jones, and as to five-fourteenths of the part conveyed.

The decree of the circuit court will be reversed, and a decree entered in this 
court conformable to this opinion; the costs made by the purchasers from 
George W. Jones to be taxed against them, and the balance to be divided 
equally between the complainant and said Jones.

Decree reversed.

-----------------
(1) Kruse v. Scripps, ante, 103 and note 1. 

Cited — Vorhis v. Thomas, 12 Ill., 442; Alexander v. Tarns, 13 Ill., 221; 
Ralston v. Hughes, 13 Ill., 469; Reed v. Kemp, 16 Ill., 445; Bourland v. 
Peoria Co., 16 Ill., 538; Whitney v. Roberts, 22 Ill., 381; Ward v. Enders, 29 
Ill., 519; Russell v. Brown, 41 Ill., 183; Horner v. Zimmerman, 45 Ill., 14; 
Bridgford v. Riddell, 55 Ill., 261; Colcord v. Alexander, 67 Ill., 581; Le 
Moyne v. Quimby, 70 Ill., 399; Bracken v. Cooper, 80 Ill., 221; Hatfield v. 
Merod, 82 Ill., 113; Beebe v. Saulter, 87 Ill., 518; Stubblefield v. Borders, 
92 Ill., 279; Griffin v. Wertz, 2 Bradw., 487.

(1) Any description by which the identity of the premises intended to be 
conveyed may be established is sufficient, Smith v. Crawford, 81 Ill., 296; 
see Rockafellow v. Village of Arlington, 91 Ill., 375; wherefore the deed will 
not be void for uncertainty if the land may be located with reasonable 
certainty, by prior possession and by description in deeds of former grantors, 
Colcord v. Alexander, 67 Ill., 58, according to the maxim id certum est quod 
certum reddi potest. If the description be not itself certain it may be made 
so by reference to other deeds in which it is sufficient, Bowman v. Wettig, 39 
Ill., 416; Russell v. Brown, 41 Ill., 183, so reference may be had to 
government records, or patents, to supply defective numbers of the land, 
Worden v. Williams, 24 Ill., 67, and where on foreclosure the reference to the 
deed was by the wrong date the mistake might be corrected by reference to the 
files of the cause, Russel v. Brown, 41 Ill., 183. Where a deed purported to 
convey a certain number of acres or all the land grantor had in a certain 
locality, it was held admissible to show what land he owned in the locality, 
Colcord v. Alexander, 67 Ill., 581. Two instruments of writing executed at the 
same time, relating to the same subject matter are regarded as one and 
construed together, Bailey v. Cromwell, 3 Scam., 71; Duncan v. Charles, 4 
Scam., 561; Davis v. M'Vickers, post, p. 327, Reavis v. Fielden, 18 Ill., 77; 
Canterbury v. Miller, 76 Ill., 355; Hall v. Henderson, 84 Ill., 611; Bradley 
v. Marshall, 54 Ill., 173; Smith v. Riddell, 87 Ill., 165; and in this respect 
if the instruments executed be part of the same transaction it matters not 
whether they be executed at the same or at different times; they will still be 
construed together, Stacey v. Randall, 17 Ill., 467, and parol testimony is 
admissible to connect these instruments and show they are but one contract, 
Stookey v. Hughes, 18 Ill., 55, overruling Gorham v. Peyton, 2 Scam., 363, and 
approving Lane v. Sharp, 3 Scam., 566. So if an instrument refers to some 
other and makes it a part of its conditions, these will be construed together, 
Home Ins. Co. v. Favorite, 46 Ill., 263.

(2) So held in Ward v. Enders, 29 Ill., 519; Bay v. Cook, 31 Ill., 347; Horner 
v. Zimmerman, 43 Ill., 14; Lyon v. Robbins, 46 Ill., 276; Fitzgerald v. 
Forristal, 48 Ill., 228; Fast v. M'Pherson, 98 Ill., 496.

(3) Surety of grantor when he conveys, being afterward compelled to pay, is a 
creditor, within the statute, to impeach the sale, as fraudulent, by bill 
etc., Hatfield v. Merod, 82 Ill., 113; see, also, M'Dowell v. Cochran, ante, 
p. 31; Bay v. Cook, 31 Ill., 336.

(4) Changed by Stat. 1829, creating additional officers empowered to take 
acknowledgments, see Adams v. Bishop. 19 Ill., 395; Holbrook v. Nichol, 36 
Ill., 161. See R. S., 1874, p. 276, sec 20; Cothran's Stat. ch. 30, sec 20.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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