assignee and the transfer of the leasehold interest to him. It also recited that an order had been entered by the county court authorizing, empowering and instructing the assignee to sell said premises to Kraus for the sum of $37,500, and approving said contract. The clause for conveying the premises was as follows: "The said John M. Krause, assignee as aforesaid, has released, assigned, sold, conveyed and quit-claimed, and by these presents does hereby release, assign, sell, convey and quit-claim, unto the said party of the second part, all the right, title, interest, estate, claim and demand whatso ever of the said Herman Hermann, which he, the said Herman Hermann, had on the said 29th day of June, A. D. 1893, and of the said John M. Krause, assignee as aforesaid." The other form of deed was a quit-claim from Herman Hermann and his wife to Kraus, as grantee. The assignee then told Kraus that he would have the order of the county court entered approving the same whenever Kraus should approve the form of deeds so drawn up, and would cause the deeds to be executed and delivered whenever Kraus was ready to perform the contract. Kraus informed the assignee that he had no objection to the form of the deeds; that he had purchased the premises for Carter H. Harrison, who was to pay the consideration; that he could not obtain the consideration money from said Harrison until after the close of the World's Columbian Exposition, on October 30, 1893, and did not desire to complete the transaction until the following week, but that during the following week he would close it up, and that he waived any tender of the deeds of conveyance. On October 28, 1893, Carter H. Harrison was assassinated, and on October 30, 1893, the assignee, with his attorney, again called upon Kraus, when Kraus stated that as Harrison was dead and the purchase was not intended for himself he had no interest in closing up the transaction, and refused to perform the contract or pay the consideration. Nothing more was done until

November 28, 1893, when an order was entered in the county court approving the contract. On January 2,

1894, the assignee tendered his deed to Kraus and a quitclaim deed from Herman Hermann and wife, but Kraus refused to perform the contract on his part. The assignee called on the heirs and devisees of Carter H. Harrison, who are made defendants with Kraus to the amended bill, and they also refused to perform the contract. The prayer of the bill was that said Adolf Kraus, or some of the defendants, might be compelled to specifically perform the agreement and pay the purchase money.

It would be neither advisable nor practicable to recount or discuss the numerous positions and grounds of attack and defense occupied by the respective parties during the progress of the case through the Appellate Court and in this court, which are set out at length in the briefs and arguments filed in that court, and re-filed here with additional and supplemental arguments. It is deemed necessary only to consider the question whether, under the circumstances stated in the bill as above and admitted by the demurrer, the contract became binding upon the parties according to its terms.

It was expressly provided that the assignee should not be bound unless the contract was approved by the county court of Cook county. The time when the performance of the contract was to be completed by the conveyance of the property was within ten days from the time of the delivery of the abstract of title, and this period expired October 23, 1893. The order was not obtained, and when the time for making the conveyance according to the terms of the contract arrived, it was still not binding upon the assignee nor enforceable by Kraus against him. Not only was the contract not binding on him, but he did not perform or offer to perform at that time. As an excuse for not obtaining the order of approval so as to make the contract a complete and bind

ing agreement, it was averred in the bill that such order was not obtained immediately upon the execution of the contract at the request of Kraus, who agreed that it might be entered when the transaction was ready to be closed. The time when, by its terms, the contract was to be carried out was October 23, 1893, and the request of Kraus, as averred, did not operate to extend the time for securing the approval of the court beyond that date. The request for delay at that time could have referred to no other time than that fixed by the contract, and that was the time that the parties had in mind. The subject of the order was never mentioned afterwards by Kraus, and nothing was said by either of the parties, except when the assignee exhibited the forms of deeds on October 27, 1893, when he told Kraus he would have the order entered whenever Kraus approved the form of deeds. It is averred that Kraus then informed the assignee that he had no objection to the form of deeds, and according to the bill there was no further excuse for not obtaining the approval at that time. And when the assignee was in default, under the terms of the contract, Kraus disclosed his agency for Carter H. Harrison, and a desire to delay until the following week when his principal could close up the contract. The assignee seems to have then recognized Kraus as an agent merely in the transaction, and assented to the delay. The assignee had still not obtained the order of approval on October 30, when the contract was repudiated by Kraus, and no excuse for the failure was given. It was almost a month after that, on November 28, 1893, when the order was entered, and deeds were not executed or tendered until January 2, 1894. If Kraus could be considered as assenting to the proposition of the assignee to obtain the order after October 23, when he should approve the forms of deeds, his assent to such extension terminated with his approving the deeds on October 27, when he told the assignee that he had no objection to their form. Still

the order was not obtained, and even after the repudiation nothing was done towards making the contract binding for nearly a month, and deeds were not made and tendered for two months after such repudiation.

In our opinion the agreement never became a binding contract capable of enforcement, since it was not approved by the county court until after it had expired. and had been repudiated by Kraus. As the contract was not binding upon the assignee for want of the order of approval, there was a lack of mutuality, which would prevent a court of equity from enforcing it. If it could not be specifically enforced against all parties, equity would not interfere. Fry on Specific Performance, sec. 440; Moore's Admrs. v. Randolph, 6 Leigh, (Va.) 175; Winter v. Trainor, 151 Ill. 191; 22 Am. & Eng. Ency. of Law, 1019.

It is argued that the stipulation in the contract for approval by the county court was only such a condition as the law would imply to make the sale a valid one, and that Kraus was to be regarded as a bidder at a judicial sale under an order of court. We do not see that it would make any difference whether the law implied the condition or not. If it did imply such a condition, and the contract was not valid or enforceable against the assignee without the order of approval, the effect would be the same. The claim that Kraus was to be regarded as a bidder at a judicial sale is manifestly groundless. There had been no petition or proceeding in the county court for an order to sell, nor any decree or order for sale under which he could be regarded as a bidder whose bid was to be submitted to the county court for approval, or under which he could make himself a party to the proceeding in court. The bill disclosed no such state of facts, but only a provisional contract made by the assignee on his own account, which was to become binding only upon approval by the county court.

The judgment of the Appellate Court will be affirmed. Judgment affirmed.

BEATRICE FITCH et al.

V.

JOSEPH H. GRAY et al.

Filed at Ottawa March 28, 1896-Rehearing denied October 9, 1896.

1. PUBLICATION-for execution against lands of deceased person-sufficiency of affidavit. An affidavit for publication of notice to obtain execution against the lands of a deceased person, under the statute (Laws of 1875, p. 86,) requiring, in case there is no executor or administrator, at least three months' notice to the heirs of the existence of the judgment or decree, may state the residence of the heirs on information and belief.

2. EXECUTIONS—may issue against lands of decedent at later day than named in notice. An execution against the estate of a deceased person may issue at a date later than that stated in the notice of intention to issue it.

3. SAME—notice of, against lands of deceased person, need not be signed. A notice that an execution will be issued against the estate of a deceased person need not be signed by any person.

4. PLEADING—when leave to file new bill may be refused. Leave to file a new bill as a substitute for the original bill with its various amendments, and a supplemental bill, is properly refused where many amendments have been allowed, demurrers thereto passed upon, an order dismissing the bill been set aside, a supplemental bill filed, and demurrers sustained to the bill as amended and the supplemental bill.

APPEAL from the Superior Court of Cook county; the Hon. JOHN BARTON PAYNE, Judge, presiding.

Appellants filed their bill to remove clouds from their title to lots 176 and 180, in a subdivision of the east half of the south-west quarter of section 30, township 38, north, range 13, east of the third principal meridian. The clouds alleged are certain sheriff's deeds and conveyances thereunder, and certain tax deeds, etc. The bill also seeks to set aside a certain conveyance made by the appellants which is alleged to have been fraudulent and void.

One John Fitch, in his lifetime, was seized in fee of lots 176 and 180. It appears from the bill that Fitch