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deed. Chicago v. Witt, 75 Ill. 211; Wade on Notice, secs. 286, 287; McMechan v. Griffing, 3 Pick. 150; Fair v. Stevenot, 29 Cal. 486; 3 Washburn on Real Prop. (4th ed.) 317; Wait v. Smith, 92 Ill. 385; LaStrade v. Barth, 19 Cal. 678.

Possession is presumed to follow the title, and if consistent with the title of record is not notice of any unrecorded deed. 3 Washburn on Real Prop. (4th ed.) 317; Tiedeman on Real Prop. sec. 695.

It is the undoubted right of the holder of an equity or a defective title to buy in an outstanding legal title to protect his interest. 2 Pomeroy's Eq. Jur. sec. 732; Beach on Modern Eq. Jur. sec. 373; Whalen v. Bishop, 58 Ill. 162; McNary v. Southworth, id. 473.

WILLIAM M. JOHNSTON, for appellant Patrick W. Snowhook.

U. P. SMITH, for appellee:

A petition by an administrator to sell land to pay debts is not a chancery, but a statutory, proceeding. Moline Water Power v. Webster, 26 Ill. 289; Shoemate v. Lockridge, 53 id. 803.

It has been repeatedly held in this State that it was not necessary to make a purchaser from the heirs a party to such a proceeding. Vansyckle v. Richardson, 13 Ill. 173; Harding v. LeMoyne, 114 id. 65.

The creditors have a lien upon the property for the payment of their debts, and the proceeding to sell land to pay debts is in the nature of a proceeding in rem, and this lien may be enforced against the purchasers from the heirs. McCoy v. Morrow, 18 Ill. 519; Myer v. McDougal, 47 id. 278; Vansyckle v. Richardson, 13 id. 171.

Actual notice is not essential to give effect to a prior unrecorded conveyance, but constructive notice of such conveyance is all that is required; and any fact or circumstance coming to the knowledge of the subsequent purchaser which would put a prudent man on inquiry, and which, if pursued, would lead to actual notice of an

unrecorded deed, is sufficient to invalidate the subsequent purchase. Anthony v. Wheeler, 130 Ill. 128; Chicago v. Witt, 75 id. 211; Stokes v. Riley, 121 id. 166; Dugan v. Follett, 100 id. 581.

The land was enclosed by a high board fence, and was used as a pasture for cattle. This was a sufficient occupancy and possession under the law of this State. Doty v. Broderick, 83 Ill. 475; Williams v. Brown, 14 id. 200; Brown v. Keller, 32 id. 151; Tillotson v. Mitchell, 111 id. 518; Bank v. Godfrey, 23 id. 557; Ballance v. Fortier, 3 Gilm. 291; Coari v. Olsen, 91 Ill. 279.

Harding having been in possession of said premises, this possession is presumed to continue, of which all parties were bound to take notice. 2 Pomeroy's Eq. Jur. 621; Hatch v. Bigelow, 39 Ill. 547; Benjamin v. Carter, 4 Ired. 310.

The defendants have not bettered their position by putting improvements upon the property. Smith v. Jackson, 76 Ill. 254.

Mr. JUSTICE MAGRUDER delivered the opinion of the court:

The original bill in this case was a bill to foreclose a mortgage, executed by M. O. Walker on May 24, 1871, to the Globe Insurance Company, upon the south half of lot 7, being a lot between Forest and Prairie avenues and Thirty-third and Thirty-fifth streets in Chicago, for the purpose of securing a note of that date for $10,000.00, signed by said Walker, payable to the order of said insurance company five years after date, with six per cent interest payable annually, which note is alleged to have been assigned in 1875 to George F. Harding, and afterwards, on May 7, 1883, to have been assigned to the appellee, John O. Wheeler, a citizen of New York. We are satisfied that, though the appellee is the nominal complainant, the real complainant is George F. Harding. M. O. Walker died on May 28, 1874, leaving a widow, Martha A. Walker, and two sons, Samuel O. Walker and

Edward S. Walker, as his only heirs-at-law. On January 14, 1875, Augustus L. Chetlain was appointed administrator of the estate of M. O. Walker. The original bill makes parties defendant thereto the sons, widow and administrator aforesaid, and also the appellants, Caroline M. Robertson, James D. Robertson, her husband, James Stroud, P. W. Snowhook, S. D. Ward, Thomas B. Bryan, Jennie B. Bryan, Joseph T. Anthony, and others.

On February 8, 1890, an amended bill was filed in the name of appellee, which seems to be a bill with a double aspect, so framed as to be considered a bill by a mortgagee to foreclose the mortgage above described, when looked at from one point of view; and also so framed as to be considered a bill by the holder of the legal title to remove a cloud from such title, when looked at from another point of view. Its prayer is in the alternative, either that an account may be taken of what is due the complainant in principal and interest upon said mortgage, and that a sale may be made of said premises, and that, out of its proceeds, payment may be made to complainant of what is found to be due on said mortgage; or that, if the court see fit, a decree may be entered setting aside the deed hereinafter mentioned from Carrie Walker, wife of said Samuel O. Walker, to the appellant, Caroline M. Robertson, and declaring the same fraudulent and void as against complainant.

The bill sets out certain conveyances from the owners of the equity of redemption of said mortgaged premises, executed to George F. Harding, while owning said note and mortgage. Ordinarily, where the owner of a mortgage becomes also the owner of the equity of redemption, a merger takes place, and the mortgagee is the owner in fee of the whole title. If the complainant here is to be regarded, not as a mortgagee, but as the owner of the full title, and, if the bill is to be treated as a bill by such owner to remove a cloud from his title, then the court below erred in taking jurisdiction of the cause, be

cause it is conclusively shown, that the defendants, Robertson and Stroud, and those holding under them, were in possession of the premises when the original bill was filed, and also when the amended bill was filed. To maintain a bill to remove a cloud from title it must be alleged and proved, either that the complainant is in the actual possession of the lands, or that they are unimproved and unoccupied, (Lundy v. Lundy, 131 Ill. 138.) In the case at bar, the complainant was not in the actual possession of the premises, nor were they unimproved and unoccupied, at the time of filing either the original or amended bill. We do not regard the stipulation between the parties found in the record as being broad enough to amount to an agreement, that the jurisdiction of the court should not be objected to. But whether the stipulation is capable of the construction claimed for it, or not, can make no difference; for it is well settled, that jurisdiction over the subject matter cannot be conferred upon a court by consent of parties. (Leigh v. Mason, 1 Scam. 249; Beesman v. City of Peoria, 16 Ill. 484; Peak v. People, 71 id. 278.)

The defendants below, appellants here, seek to defend against the bill, not only as being a bill to remove a cloud, but also as a bill to foreclose the mortgage in question, upon the alleged ground, that said mortgage has been discharged, and is no longer a subsisting incumbrance, and that the defendants, Caroline M. Robertson and James Stroud, are the owners of the title freed from the lien of the mortgage. In order to understand this contention, it will be necessary to state the history of the conveyances already referred to and the facts in regard to the same.

By deed dated September 20, 1875, and recorded September 22, 1875, Samuel O. Walker and his wife, Carrie Walker, conveyed said lot 7 and other property to Charles Fargo. By another deed also dated September 20, 1875, and recorded September 22, 1875, Edward S. Walker conveyed said lot 7 and other property to Charles Fargo.

While Charles Fargo was thus the holder of the title to the south half of lot 7 subject to the widow's dower, the administrator, Chetlain, filed a petition on April 4, 1876, in the county court of Cook county for leave to sell real estate to pay debts owing by the estate of M. O. Walker, making Samuel O. Walker, Edward S. Walker, Martha A. Walker, Charles Fargo and others parties defendants thereto; and thereafter, on February 8, 1877, filed an amended petition therein for the same purpose, which described said lot 7, stated that the south half thereof was subject to said mortgage for $10,000.00, that said Walker died leaving said widow and two sons, his sole surviving heirs; "and that said heirs have conveyed their interest to one Charles Fargo." This petition was answered by the two sons, admitting the facts and consenting to a decree for the sale of the real estate. By deed dated March 23, 1877, and recorded on November 2, 1878, Charles Fargo and his wife conveyed said lot 7 and other property to Carrie Walker, the wife of Samuel O. Walker. Thereupon, on August 13, 1878, upon motion of the administrator, the petition was dismissed as to Charles Fargo. Afterwards, on August 30, 1878, a decree of sale was entered therein, ordering that said south half of lot 7 be sold for cash, subject to the widow's dower. Subsequently, the administrator made his report to the county court, stating that, on October 15, 1878, he struck off and sold the south half of said lot for $100.00 to George R. Grant, and prayed that he might be allowed to make a deed to the purchaser, and that his report might be approved; said report was approved and the sale confirmed on October 22, 1878.

By deed dated July 20, 1878, and recorded July 1, 1885, Carrie Walker and her husband conveyed the south half of said lot 7 to George F. Harding. By deed dated May 7, 1883, recorded July 1, 1885, George F. Harding and wife conveyed said south half of lot 7 to the appellee, John O. Wheeler.

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