ance. Choteau vs. Jones et al. 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 conveyAnd 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 cannot 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 snd 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 Choteau vs. Jones et al. 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 opinión. 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, but 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. Gray vs. McCance. JAMES GRAY, appellant, vs. JAMES W. McCANCE, appellee. Appeal from Hancock. An injunction should not be dissolved, and a bill dismissed, upon the filing of an answer not under oath; or without evidence of the truth of the facts alleged in the answer. This was a bill filed by complainant, McCance, in which he alleged, that in the year 1839 himself and family settled and made his residence on the north-west fractional quarter of section eleven, in township seven north, range eight west, containing one hundred and fifty acres; that he had a valid right of pre-emption to said land; that on the 23d day of September, 1841, he proved his right of pre-emption before the register and receiver at Quincy, Illinois, and that the same was allowed by them; that he paid the price of said land, and took the receiver's receipt in the usual form; that about the 28th day of May, 1842, said register and receiver, on the application of one Samuel L. White, without authority of law, of their own wrong, by usurpation of power, reviewed their decision granting to appellant said pre-emption, set the same aside, declaring it null and void. That in the year 1844, the appellee applied to said register and receiver for a pre-emption on said tract of land, and that said register and receiver, acting on false and fraudulent evidence, allowed him a pre-emption on said land, and received from him the purchase money thereof; that said appellee had, in fact, no right of pre-emption to said land, and states facts to show that he was not so entitled; but that a patent has been issued to said appellee, upon which he brought an action of ejectment against appellant, recovered a judgment, and is about to turn him out of possession, and prayed and obtained an injunction, &c. On the 19th day of April, 1849, the defendant filed his answer, in which he does not deny any of the facts stated in complainant's bill, but alleges that, on the fifteenth day of September, 1847, the plaintiff filed in said Court his bill against said defendant, in which he set up the same matters contained in this bill, and prayed the same relief; that the defendant fully answered that bill, and that the injunction granted in that case was dissolved; which bill is still pending and undecided, except by dissolving said injunction. All which fully appears by the re Gray vs. McCance. cord and proceedings in said case, remaining on file in said Court. Prayed that the injunction be dissolved and the case dismissed. And for that purpose, refers to the facts stated in his answer in the former suit, and makes them part of this answer. On the 20th day of April, 1849, the defendant moved the Court to dissolve the injunction and dismiss the bill. This motion was taken under advisement by the Court, "and it was agreed by the parties, that the answer herein filed might be considered as an answer for the purposes of this motion." On the 25th April, the appellant, complainant, moved for leave to file exceptions to defendant's answer; which motion was overruled on the following day, Minshall, Judge, dissolved the injunction and dismissed the bill. Both of which orders are assigned for error. S. T. LOGAN, for appellant. WILLIAMS & LAWRENCE, for appellee, made the following ・points":" The answer or plea in this case, may be technically informal, but as the plaintiff did not except, but agreed that it should stand and be considered as an answer, he cannot now except to it. The answer states facts which, if true, were a good bar to the prosecution. The plaintiff, by filing a replication, might have controverted their truth, upon the hearing of the motion, but having failed to reply, he admitted the truth of the answer, and must now be considered as having consented that the Court should determine the law of the case, arising upon the facts. And there can be no doubt that, upon the merits, the bill should have been dismissed. The plaintiff having agreed that the answer should be considered and received upon the motion, had no right to retract his agreement or admission, and except to the answer. If there was any irregularity in the proceedings, it was waived by the complainant; substantially, and upon the merits, the decree of the Circuit Court was correct. It being admitted by the pleadings, that there was another suit pending in the same Court, between the same parties, for the identical cause of action, and seeking the same relief, the complainant had no right to prosecute this suit. There was not, therefore, any reason for Davis vs. McVickers. continuing it in Court, and the Court below did right to dismiss it. Opinion by Mr. Justice TRUMBULL: The defendant, in an answer, not under oath, alleged that the complainant had previously filed a bill against him in the same Court, in which he set up the same matters, and prayed the same relief as in this case; that he fully answered said first bill, and that such proceedings were thereupon had that the injunction granted in said suit was dissolved, but that the suit was still pending and undecided. The day after filing his answer, and before any replication thereto had been filed, the defendant entered a motion to dissolve the injunction granted in this case, and to dismiss the bill. This motion the Court sustained; and that decision is now assigned for error. The decision of the Court was clearly erroneous. Admitting that the facts set forth in the answer, if proved-or To th in a plea, and admitted-would have constituted a spo fence, the defendant, if he thought proper to age them in an answer, should have been required to furnish videre SCHOOL truth. This, so far as the record shows, he not do. The answer furnished no evidence of the truth of the feBRARY: The decree of the Circuit Court is reversed and the case remanded. Decree reversed. JOHN DAVIS, appellant, vs. ELIJAH MCVICKERS, appellee. Appeal from Cass. Where the promissory notes sued on, and an agreement respecting them, were executed at the same time, between the same parties, about the same subject matter, they must be construed together, and considered as forming but one contract. If a party gives promissory notes as the consideration for land, and he cannot acquire the title to the estate purchased, there is a failure of consideration, which may be set up to defeat a recovery on the notes. In conveying lands sold on execution, a sheriff can only make the deed to the purchaser, his assignée or legal representative. A deed to a stranger would be a nullity. 11 327 86a 659 |