Scates, J.
In 1835, Nekemiah Bates died, possessed of a pre-emption to lots 10 and 11 in Galena, and other real estate, all improved, leaving Archange, his wife, and Elizabeth and Juliana, infants.
On the 25th of May, 1835, letters of administration issued to Archange and J. B. McDowell, who afterwards intermarried, and the letters of administration were revoked, and on the 3rd of October, 1835, letters issued to J. B. McDowell alone. In 1837, McDowell was appointed guardian for the two infant children, and acted until 1840, when he resigned, and Thomas Drum was appointed, and acted. The administrator filed inventories of the personalty, and of lots 10 and other realty, and at the April term of the circuit court, 1836, obtained an order to sell lot 10, which was afterwards sold, and the proceeds applied as assets.
The pre-emption was proven before the commissioners, under the acts of Congress of 5th of February, 1829, and 2nd of July, 1836, and a certificate issued by commissioners, to Elizabeth and Juliana Bates, on 21st of March, 1837, in their own names.
On the 3rd of November, 1838, McDowell as administrator and guardian, and Archange, his wife, executed a lease of lot 11, with Avarehouse thereon, to N. Stillman & Company, (composed of himself and McLean,) for three years, from the 1st of April, 1839, at $900 per annum. They entered, and held during the lease, and from the end, 3rd of April, 1842, to 5th of July, 1843, Stillman, and Stillman & Rood held over. On the 5th of July, Stillman took a new lease from Drum, as guardian, on the Avhole lot, until the 6th of March, 1847, when Elizabeth arrived at majority, and on half the lot until the 2nd of May, 1849, Avhen Juliana attained her majority. Under this lease, Stillman & Rood occupied until its expiration.
This lease was made Avith the sanction and approval of the judge of probate, and the considerations paid by Stillman, arc expressed to bo a quit claim deed to the lot 11, from Stillman and Avife to the minors, made on settlement of all suits, demands, actions, and causes of action in kvw and equity, from the existing state of things, for all contracts, liabilities, doings or omissions, concerning this lot, and certain judgments and executions upon Avhich the lot was sold, and under which, Stillman claimed title, together with moneys laid out and expended on said property, by Stillman, to the amount of $3,500. The quit claim was executed accordingly.
To explain this transaction, the following statement is admitted.
A. G. S. Wight, as administrator of Bouthellin, had a demand against the estate of N. Bates, but had neglected to present and prove it until some time in 1838, when McDowell, as administrator of Bates, allowed the demand, and gave his two promissory notes for it.
Wight recovered judgment upon one of these notes against McDowell, in 1838, for $451.55, issued execution thereon the 29th of August, 1838, levied on this lot 11th of September, and sold it the 14th of January, 1839. In May, 1839, he recovered judgment for $463.98 on the other note, on the 28th of June execution issued, was levied on same lot, and on the 4th of September, 1839, it was sold. Both were purchased by procurement of Stillman & McLean, and conveyances made to them. This last judgment was reversed by supreme court at December term, 1843, after the conveyances to Stillman & Co.
These constituted the title, and claims, etc., mentioned as the consideration in the lease of 5th of July, 1843.
The wards have intermarried with Young and Marchildon, who file this bill, setting up the statute of limitations against the demand of Wight, administrator of Bouthellin, and praying an account of the rents.
The plaintiffs here, answered the bill, admitting the above statement of facts, and insist upon the lease as a settlement, and also upon a large outlay for repairs and improvements.
The court found a balance of rents due under the first lease, from Stillman & McLean, of $2,487.61, from Stillman alone, for his occupancy between the .two leases, of $570.13, from the 1st of April, 1842, to the 1st of April, 1843, and from Stillman & Rood, $125.55, for their occupation from 1st of April, 1843, to 5th of July, 1843, when the second lease was made; and for these respective sums a final decree was entered, with interest from date of decree until paid.
This is assigned for error, with other causes.
I may remark that the reversal of one of the judgments in the supreme court, would not affect a fair bona fide purchaser, without notice, if the lot were bound by that judgment as a lien, and subject to sale for its satisfaction, by execution upon it. But it was neither. All real estate, by statute, may be sold for the payment of the debts of intestates; Rev. Stat. 1845, p. 558, sections 103, 104; but administrators have no power to sell or incumber, without an order of court. The lands descend, in the mean time, to the heirs at law, sub modo, subject to this liability, and in this particular manner, to be divested for this object.
Though the lands descend, subject to the payment of the debts, no creditor, by obtaining an allowance of, or judgment for, his claim, against an estate, or the administrator, thereby acquires any specific lien, as under the statute in relation to judgments and executions; Rev. Stat. 1845, p. 300, section 1; nor can they enforce their collection by levy of an execution upon the land. Welch v. Wallace, 3 Gil. R. 490; see also Marshall v. Adams, 11 Ill. R. 40.
Again, the statute of limitation, of two years after the issuing of letters of administration, absolutely bars and cuts off all demands not presented or notified within that time, from the assets arising from the estate inventoried. Rev. Stat. 1845, p. 561, section 115; Thorn v. Watson, administrator, 5 Gil. R. 30 ; Judy, administrator, v. Kelley, 11 Ill. R. 216; The People v. White et al., 11 Ill. R. 349.
The failure of the administrator to plead this special statute of limitations, will not bar or preclude the heirs from pleading it on settlement with the administrator. See Nowell v. Nowell, 8 Maine R. 225.
These principles clearly cut off all pretense of title to this lot, derived under the judgments of Wight against McDowell, whether they were against him individually, or as administrator, nor can any equitable title be based upon their payment, or any purchase under them.
Again, another difficulty stands in the way of these arrangements of the proceeds of the rents by McDowell. As administrator he had' nothing to do with the leasing of the realty, and collection and management of the rents ; as guardian, he had as little concern with the administration of the estate, and settlement of the debts. Nor can he be allowed, by blending the two characters, to throw the administration and management of the two estates into a kind of hotch-pot confusion, and thereby sustain a misapplication of the funds and interests of the one to the other.
This land descended to the heirs, subject to the payment of debts in the due, legal and proper course of administration.
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Scates, J.
In 1835, Nekemiah Bates died, possessed of a pre-emption to lots 10 and 11 in Galena, and other real estate, all improved, leaving Archange, his wife, and Elizabeth and Juliana, infants.
On the 25th of May, 1835, letters of administration issued to Archange and J. B. McDowell, who afterwards intermarried, and the letters of administration were revoked, and on the 3rd of October, 1835, letters issued to J. B. McDowell alone. In 1837, McDowell was appointed guardian for the two infant children, and acted until 1840, when he resigned, and Thomas Drum was appointed, and acted. The administrator filed inventories of the personalty, and of lots 10 and other realty, and at the April term of the circuit court, 1836, obtained an order to sell lot 10, which was afterwards sold, and the proceeds applied as assets.
The pre-emption was proven before the commissioners, under the acts of Congress of 5th of February, 1829, and 2nd of July, 1836, and a certificate issued by commissioners, to Elizabeth and Juliana Bates, on 21st of March, 1837, in their own names.
On the 3rd of November, 1838, McDowell as administrator and guardian, and Archange, his wife, executed a lease of lot 11, with Avarehouse thereon, to N. Stillman & Company, (composed of himself and McLean,) for three years, from the 1st of April, 1839, at $900 per annum. They entered, and held during the lease, and from the end, 3rd of April, 1842, to 5th of July, 1843, Stillman, and Stillman & Rood held over. On the 5th of July, Stillman took a new lease from Drum, as guardian, on the Avhole lot, until the 6th of March, 1847, when Elizabeth arrived at majority, and on half the lot until the 2nd of May, 1849, Avhen Juliana attained her majority. Under this lease, Stillman & Rood occupied until its expiration.
This lease was made Avith the sanction and approval of the judge of probate, and the considerations paid by Stillman, arc expressed to bo a quit claim deed to the lot 11, from Stillman and Avife to the minors, made on settlement of all suits, demands, actions, and causes of action in kvw and equity, from the existing state of things, for all contracts, liabilities, doings or omissions, concerning this lot, and certain judgments and executions upon Avhich the lot was sold, and under which, Stillman claimed title, together with moneys laid out and expended on said property, by Stillman, to the amount of $3,500. The quit claim was executed accordingly.
To explain this transaction, the following statement is admitted.
A. G. S. Wight, as administrator of Bouthellin, had a demand against the estate of N. Bates, but had neglected to present and prove it until some time in 1838, when McDowell, as administrator of Bates, allowed the demand, and gave his two promissory notes for it.
Wight recovered judgment upon one of these notes against McDowell, in 1838, for $451.55, issued execution thereon the 29th of August, 1838, levied on this lot 11th of September, and sold it the 14th of January, 1839. In May, 1839, he recovered judgment for $463.98 on the other note, on the 28th of June execution issued, was levied on same lot, and on the 4th of September, 1839, it was sold. Both were purchased by procurement of Stillman & McLean, and conveyances made to them. This last judgment was reversed by supreme court at December term, 1843, after the conveyances to Stillman & Co.
These constituted the title, and claims, etc., mentioned as the consideration in the lease of 5th of July, 1843.
The wards have intermarried with Young and Marchildon, who file this bill, setting up the statute of limitations against the demand of Wight, administrator of Bouthellin, and praying an account of the rents.
The plaintiffs here, answered the bill, admitting the above statement of facts, and insist upon the lease as a settlement, and also upon a large outlay for repairs and improvements.
The court found a balance of rents due under the first lease, from Stillman & McLean, of $2,487.61, from Stillman alone, for his occupancy between the .two leases, of $570.13, from the 1st of April, 1842, to the 1st of April, 1843, and from Stillman & Rood, $125.55, for their occupation from 1st of April, 1843, to 5th of July, 1843, when the second lease was made; and for these respective sums a final decree was entered, with interest from date of decree until paid.
This is assigned for error, with other causes.
I may remark that the reversal of one of the judgments in the supreme court, would not affect a fair bona fide purchaser, without notice, if the lot were bound by that judgment as a lien, and subject to sale for its satisfaction, by execution upon it. But it was neither. All real estate, by statute, may be sold for the payment of the debts of intestates; Rev. Stat. 1845, p. 558, sections 103, 104; but administrators have no power to sell or incumber, without an order of court. The lands descend, in the mean time, to the heirs at law, sub modo, subject to this liability, and in this particular manner, to be divested for this object.
Though the lands descend, subject to the payment of the debts, no creditor, by obtaining an allowance of, or judgment for, his claim, against an estate, or the administrator, thereby acquires any specific lien, as under the statute in relation to judgments and executions; Rev. Stat. 1845, p. 300, section 1; nor can they enforce their collection by levy of an execution upon the land. Welch v. Wallace, 3 Gil. R. 490; see also Marshall v. Adams, 11 Ill. R. 40.
Again, the statute of limitation, of two years after the issuing of letters of administration, absolutely bars and cuts off all demands not presented or notified within that time, from the assets arising from the estate inventoried. Rev. Stat. 1845, p. 561, section 115; Thorn v. Watson, administrator, 5 Gil. R. 30 ; Judy, administrator, v. Kelley, 11 Ill. R. 216; The People v. White et al., 11 Ill. R. 349.
The failure of the administrator to plead this special statute of limitations, will not bar or preclude the heirs from pleading it on settlement with the administrator. See Nowell v. Nowell, 8 Maine R. 225.
These principles clearly cut off all pretense of title to this lot, derived under the judgments of Wight against McDowell, whether they were against him individually, or as administrator, nor can any equitable title be based upon their payment, or any purchase under them.
Again, another difficulty stands in the way of these arrangements of the proceeds of the rents by McDowell. As administrator he had' nothing to do with the leasing of the realty, and collection and management of the rents ; as guardian, he had as little concern with the administration of the estate, and settlement of the debts. Nor can he be allowed, by blending the two characters, to throw the administration and management of the two estates into a kind of hotch-pot confusion, and thereby sustain a misapplication of the funds and interests of the one to the other.
This land descended to the heirs, subject to the payment of debts in the due, legal and proper course of administration. The fact that the heirs proved up their father’s pre-emption, under the acts of Congress, even with the administrator’s consent and assistance, can make no difference, I think, nor will the fact of their taking the certificate and making the entry in their own names. The transaction comes within the equity of the provisions of the statute of Wills, sections 111, 112 and 113, (Rev. Stat. 1845, p. 559, 560,) relative to lands bought of the United States on partial credit, and for which, special provision is made for securing the interest therein, of an intestate, and subjecting that interest to the same liability of intestate’s other lands.
Under these principles the case must bo decided upon the rights of the parties, as presented by the leases and occupancy, on the one hand, and the payment of rents, repairs and improvements, on the other.
In relation to the permanent improvements, the leases do not authorize any, and the testimony shows that they were forbidden. The claim for them, therefore, can have no foundation in the account of plaintiffs, as lessees, and if made upon the score of adverse claimants of title, under the judgments, they must go with the disposition made of that title.
As we understand the decree, the court did recognize, without so declaring expressly, the validity of the lease made by Drum, as guardian, on the 5th of July, 1843. If so, we cannot review it, as the case.is brought here by Stillman & Co., who make no complaint as to this affirmance of it.
They may complain of its provisions being disregarded, in the construction contended for, that the account for previous rents, repairs, etc., were included in and settled by the lease.
The lease does not recite anything in relation to rents or repairs, but only in relation to conflicting title and improvements, for which two last, plaintiff Stillman executed a quit claim.
There is no well grounded pretext for including in this arrangement, under these recitals, the rents then due on former lease and occupancy.
The lease was made with the approval of the court of probate, but looks to be hard and unconscionable enough to the interests of the wards, without adding, by a liberal construction of its recitals, between two and three thousand dollars of their dues for past rents, to the use of the premises for five to seven years longer, all for the nominal consideration of a groundless title and unauthorized improvements.
I shall not adopt a construction which adds such grossness to the inadequacy of the consideration paid by Stillman. Excluding these accounts from all connection with the lease, it is not presented, by this assignment of error by plaintiffs, for our consideration.
In taking the account of the rents, the court has committed no error by allowing annually nine hundred dollars. That was the amount agreed on- up to 1st of April, 1842, and the parties held over without a new agreement, until 5th of July, 1843, and without offering to deliver possession, according to the terms of the lease, or any notice of an expected reduction of rent.
This brings Stillman & McLean in debt, for the term of the first lease to 1st of April, 1842, in $2,700, with interest from the end of each quarter, the time it became due, until paid; Stillman alone from the 1st of April, 1843, with interest from that date, on $662.50 ; and Stillman & Rood, to 5th of July, on $237.50, until paid. The plaintiffs should discharge themselves by proof of payments. Showing payments in the way of repairs, they have also shown improvements by building a cellar, etc., and many of the items are left unexplained, so that I am not able to determine from the record, whether the work and materials were for the repairs of the premises, or on the improvements. Other items, which might be proper charges, are not particularly known to the witnesses, to have been furnished. These cannot be admitted simply on the footing of forming part of an account, of which many items are proven. The account is not of that character of dealing that admits of this rule of testimony.
Testing the plaintiffs’ accounts by rules of strict proof, they have not established enough to show any error in the conclusion to which the court arrived, as to balances due.
Decree affirmed.
Treat, 0. J., concurred in affirming the decree.