Opinion by 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 hut 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 he 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 he given them consistent with the description and references contained in the deed. There is no allegation in the hill 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 he 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 vs. Ward, 4 Greenleaf, 195; Thompson vs. Thompson, 19 Maine, 244; Carlisle vs. Rich, 8 New Hampshire, 44. The surety had an undoubted right, on recovering a judgment against the administrator, which the personal estate to he 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. McDowell vs. Cochran, ante, 31.
It is contended that an administrator may, for the benefit of creditors, impeach a voluntary conveyance made hy his intestate. We are satisfied that this position cannot 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 siezed,” as will he sufficient to discharge the residue of the debts. John Rice Jones did not die siezed of the premises in question. The title had forever 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 siezed 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 cannot take advantage of a fraudulent conveyance made hy his intestate: Hawes vs. Leader, Yelverton, 196; Osborne vs. Moss, 7 Johnson, 161; Dorsey vs. Smithson, 6 Harris and Johnson, 61; Lassiter vs. Cole, 8 Humphrey, 621; Commonwealth vs. Richardson, 8 B. Monroe, 81; Peaslee vs. Barney, 1 D. Chipman, 331; Bank vs. 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 he 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 siezed, 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 vs. Root, 17 Mass., 222. The cases of Babcock vs. Booth, 2 Hill, 181, and Brownell vs. Curtis, 10 Paige, 210, are also founded on special provisions of statute. These 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.
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Opinion by 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 hut 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 he 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 he given them consistent with the description and references contained in the deed. There is no allegation in the hill 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 he 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 vs. Ward, 4 Greenleaf, 195; Thompson vs. Thompson, 19 Maine, 244; Carlisle vs. Rich, 8 New Hampshire, 44. The surety had an undoubted right, on recovering a judgment against the administrator, which the personal estate to he 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. McDowell vs. Cochran, ante, 31.
It is contended that an administrator may, for the benefit of creditors, impeach a voluntary conveyance made hy his intestate. We are satisfied that this position cannot 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 siezed,” as will he sufficient to discharge the residue of the debts. John Rice Jones did not die siezed of the premises in question. The title had forever 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 siezed 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 cannot take advantage of a fraudulent conveyance made hy his intestate: Hawes vs. Leader, Yelverton, 196; Osborne vs. Moss, 7 Johnson, 161; Dorsey vs. Smithson, 6 Harris and Johnson, 61; Lassiter vs. Cole, 8 Humphrey, 621; Commonwealth vs. Richardson, 8 B. Monroe, 81; Peaslee vs. Barney, 1 D. Chipman, 331; Bank vs. 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 he 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 siezed, 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 vs. Root, 17 Mass., 222. The cases of Babcock vs. Booth, 2 Hill, 181, and Brownell vs. Curtis, 10 Paige, 210, are also founded on special provisions of statute. These 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 siezed of the premises, which the administrator has heen 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 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. This 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 cáse 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 aet 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 vs. Sands, 2 Johnson’s C. R., 36; Ridgeway vs. Underwood, 4 Washington’s C. C. R., 129; Sands vs. 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 taxes 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 vs. 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 vs. 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 cannot 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 vs. Smith, 2 Mason, 252; Anderson vs. Roberts, 18 Johnson, 515; Oriental Bank vs. 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 j 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 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 situatedand “ 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 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, 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