The seventh clause of section 70, chapter 3, of Hurd's Statutes of 1895, provides: "All other debts and demands, of whatever kind, without regard to quality or dignity, shall be exhibited to the court within two years from the granting of letters, as aforesaid, and all demands not exhibited within two years, as aforesaid, shall be forever barred, unless the creditors shall find other estate of the deceased not inventoried or accounted for by the executor or administrator." This statute has been in force in this State for a number of years, but it has never been understood that it was intended to operate as an absolute bar to a recovery on a claim which was not exhibited to the probate court within two years from the granting of letters. Where a claim has not been exhibited within two years, the party holding the claim may bring an action upon it and recover judgment, but the judgment can only be satisfied out of property belonging to the estate which has not been inventoried. (Bradford v. Jones, 17 Ill. 93; Judy v. Kelley, 11 id. 211.) In other words, under the statute a party who fails to exhibit his claim to the probate court within two years is prohibited from sharing in a division of the assets of the estate which were inventoried as provided by the statute. Here, Sydney L. Darrow, the holder of the note against William C. Gibbons, secured by deed of trust on real estate, had two remedies for the collection of his debt. One was an ordinary action at law on the note; the other, a bill in equity to foreclose the mortgage. He was at liberty to resort to these remedies separately, or both might be maintained at the same time, as the creditor might elect. The right to sue at law on the note and the right to foreclose the mortgage or deed of trust were concurrent rights, and these rights remained the same after the death of Gibbons. (Furness v. Union Nat. Bank, 147 Ill. 570.) Upon the death of Gibbons, Darrow, the holder of the note and deed of trust, was at liberty, if he desired, to probate his note against the estate in the probate

court, or he might decline to pursue that course and rely solely upon his deed of trust. The fact that he failed to exhibit his claim in the probate court within two years after letters of administration were granted had no effect whatever on his right to pursue the other remedy conferred by law,-the right to foreclose the deed of trust.

The second position relied upon is, that the trustee in the trust deed, Daniel C. Nicholes, and the legal holder and owner of the note, Sydney L. Darrow, by entering their appearance and allowing a default in the proceedings to sell real estate to pay the debts of William C. Gibbons, are now estopped from bringing this suit to foreclose the trust deed. In a chancery proceeding, as a general rule, a default admits all the material allegations of the bill well pleaded, and when the allegations are taken as true and as confessed, a decree entered upon such a bill may be regarded as conclusive as to the allegations of the bill well pleaded, so far as they affect the interest of the defaulted defendant. But upon looking into the record it will be found that neither the bill nor the decree contains any matter or thing which bars or precludes appellees from asserting their rights under the trust deed. On the other hand, their rights under the deed of trust are set out in the petition to sell real estate and protected in the decree. In the petition to sell real estate it is alleged "that on the 20th day of July, 1880, the said William C. Gibbons and Ellen Gibbons, his wife, made their certain trust deed of said lot 12 to Daniel C. Nicholes, as trustee, to secure a note of $500, payable to the order of Sydney L. Darrow, which said trust deed is still outstanding, and that the said Daniel C. Nicholes, as trustee, and Sydney L. Darrow, as the holder of said note for $500, have a claim against the above described lot 12." Under this allegation the claim of appellees was fully set out, and an answer setting up the note and deed of trust was not required. Moreover, the court, in its decree, made a finding of facts

in favor of appellees, as follows: "The court finds that the interest of the defendant Daniel C. Nicholes is that of a trustee in a certain trust deed on said above described lot 12, made by William C. Gibbons and Ellen Gibbons, his wife, on the 20th day of July, 1880, to secure a certain note for $500, payable to the order of Sydney L. Darrow, and that the interest of the said Sydney L. Darrow is that of the legal holder of said note for $500." Under the allegations of the petition and the findings of the decree appellees are in no manner precluded from foreclosing the deed of trust.

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

MATHEW W. BERRIMAN et al.

v.

WILLIAM MARVIN.

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

APPEALS AND ERRORS-court of review cannot consider question not presented to trial court. The Supreme Court cannot review the question whether there was any evidence fairly tending to prove the plaintiff's cause of action, unless it was presented to the trial court by demurrer to the evidence, motion to take the case from the jury, or instruction to the jury to find for the defendant.

Berriman v. Marvin, 59 Ill. App. 440, affirmed.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. RICHARD W. CLIFFORD, Judge, presiding.

LEROY D. THOMAN, for appellants.

O'DONNELL & COGHLAN, for appellee.

Mr. JUSTICE WILKIN delivered the opinion of the court: This is an action in assumpsit by William Marvin, appellee, against Mathew W. Berriman and others, appellants, to recover a balance alleged to be due him for a year's salary as salesman. His claim is that he was employed for one year but before the expiration of that time was wrongfully discharged, and therefore entitled to the balance of a year's salary, less what he earned at other employment during the remainder of the year. He recovered a judgment below, and that judgment was affirmed by the Appellate Court for the First District.

Appellants insist that there is no evidence whatever to support the claim that appellee was wrongfully discharged, and therefore the judgments of the trial and Appellate Courts should be reversed. All the questions of fact in the case have been conclusively settled by the decision of the Appellate Court, and only questions of law remain to be determined here. While all errors of law can be assigned in this court, they can only be urged as grounds of reversal when properly raised in the court below. Whether or not there was any evidence introduced on the trial fairly tending to prove the plaintiff's cause of action is a question of law, and it is well settled that we cannot be asked to review the facts presented in the record and pass upon that question unless it was presented to the trial court by a demurrer to the evidence, a motion to take the case from the jury, or an instruction to the jury to find for the defendant. (Chicago and Alton Railroad Co. v. Gomes, 153 Ill. 209; Railway Co. v. Velie, 140 id. 59; Cothran v. Ellis, 125 id. 496, and cases there cited.) Upon looking into this record we find that this question was raised in no way in the trial court.

No errors of law being properly presented for our consideration, the judgment of the Appellate Court must be affirmed. Judgment affirmed.

THOMAS W. B. MURRAY

v.

DANIEL H. TOLMAN.

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

1. FRAUD-when false representations by a seller as to value will avoid sale. Representations by the president of a bank to a customer that stock in a corporation of which he was the promoter and principal stockholder was worth a sum in excess of its par value, would yield certain dividends and prove a profitable investment, made while he knew that it was the intention to do business not authorized by the charter and to so manage it that he and the bank would acquire all the assets, are not within the rule that a purchaser can not avoid his contract because of false statements of the seller as to the value of the thing sold.

2. SAME-when representations as to value will bind a vendor. Representations made by a vendor as to the value of the thing sold to a vendee who is wholly ignorant of such value and who relies upon such representations, which were given as facts and not as a mere opinion, are binding upon such vendor.

Tolman v. Murray, 54 Ill. App. 420, reversed.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. RICHARD S. TUTHILL, Judge, presiding.

WEIGLEY, BULKLEY & GRAY, for appellant.

MOSES, PAM & KENNEDY, for appellee.

Mr. JUSTICE CARTER delivered the opinion of the court:

Thomas W. B. Murray filed his bill in equity in the G circuit court of Cook county, against Daniel H. Tolman, the Midland Company, the Chicago Trust and Savings Bank, and others, for the rescission of a certain contract of purchase of ten shares of the capital stock of said Midland Company, alleged to have been obtained by Tolman from Murray by fraud, and for an accounting of payments therefor, and of certain payments of usurious interest on two certain judgment notes, of $1000 each,