Statement of the case. Opinion of the Court.

In one of the deeds in the chain of title sought to be established by the plaintiff, a deed from Jonathan Prout and others to Robert Prout, the description of the lands was as follows: "the following tracts or parcels of land, all of which lying and being in the military tract in the State of Illinois, that is to say, the N. W. section 27, 11 S. 2 W; N. E. † 21, 10 S. 2 W; N. W. 24, 8 S. 3 W." and giving a similar description of a large number of tracts, including the "N. E. † 17, 15 N. 6 E."

A trial below resulted in a judgment for the plaintiff. defendant thereupon sued out this writ of error.

Mr. M. SHALLENBERGER, for the plaintiffs in error.

Mr. MILTON T. PETERS, for the defendant in error.

The

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of ejectment, brought by defendant in error to recover the undivided three-fourths of a quarter section of land, against plaintiffs in error.

Subsequently, the declaration was so amended as to claim an undivided four-fifths. After a trial was had, and a recovery by defendant in error, a new trial was had, and there was filed a new count, claiming the undivided three-fifths, and Strong was made a defendant. The plea of the general issue was filed to the amended declaration.

On the trial in the court below, defendant in error produced and read in evidence a connected chain of title to the undivided three-fifths of the premises, and the court so found, and rendered judgment in his favor for that portion of the land. The record is brought to this court, and a reversal is asked on various grounds.

It is first objected, that in the deed from Jonathan Prout and others to Robert Prout, the land is described as "N. E. 17, 15 N. 6 E." Before this description by numerals, it is

Opinion of the Court.

stated that the lands conveyed, of which there were a large number of tracts, were situate and being in the "military tract in Illinois." In describing the first tract in the list, this language is employed: "That is to say, the N. W. section 27, 11 S. 2 W." Then follows the numbers of the other quarters, without the use of the word "section" before each. According to the strict rules of grammar, it is believed that the word section would be supplied before the description of each succeeding quarter. Such would be the understanding of a large majority, if not all persons, who might read the deed.

No doubt can be entertained that the language employed conveys to the mind precisely the same idea as if the word "section" had been written before the numerals 17. All persons would undoubtedly so understand the description. In describing lands in a conveyance, no set form of words is required, but such language as clearly designates the lands conveyed. The cases of Dougherty v. Purdy, 18 Ill. 208; Worden v. Williams, 24 Ill. 74, and Dickenson v. Breeden, 30 Ill. 270, sustain the views here expressed. This deed was therefore properly admitted in evidence.

It is urged, in favor of reversal, that plaintiffs in error proved an outstanding paramount title in Warren. It is true, they produced a certified copy of a deed for this land from William Prout, the ancestor of defendant in error, to James Warren, bearing date the fifth of December, 1817, and recorded on the fifth of August, 1862. The deed of partition, under which defendant in error claims, bears date on the twenty-fourth day of October, 1831, which was duly recorded on the fourteenth day of December of the same year. The question is then presented whether the unrecorded deed from the ancestor of defendant in error, from whom he inherits, constituted paramount title, notwithstanding he received a release of title from the other heirs of his father to this quarter of land. It is not the question which would have arisen had he derived title directly from his father as his heir. But in the partition

Opinion of the Court.

of the lands owned by his father at his death, he gave other lands, or rather his interest in others, for this. He conveyed his interest in other tracts in exchange for the interest of the other heirs in the list they released to him which embraced this tract. Had they sold this land to a stranger before the deed to Warren was placed on record, for a valuable consideration, no person would pretend that the title would not have passed, unless notice had been brought home to the purchaser. In this case, defendant in error occupied the same relation to the property as would a stranger, as he gave as valuable a consideration by conveying his interest in other lands in exchange for the title to this, as if he had paid the money or exchanged other lands in which his co-heirs had no interest. He was a purchaser for a valuable consideration, and there is no pretense that he had notice of the prior conveyance by his father. There is no such proof in the record, nor can it be inferred from the fact that he was one of the heirs of William Prout, senior.

In this case, defendant in error did not recover the interest he claimed to have inherited from his father. He could not recover that, as he took that interest as a volunteer, and his father's prior deed, although unrecorded, estopped him from claiming it, unless he had impeached it as a fraud or forgery. Kennedy v. Northup, 15 Ill. 148. But having paid value by releasing his title to other lands, to his co-heirs, he is a pur chaser, as to three-fifths, and, unless he had notice, his claim to protection is as strong and just as though he had not been an heir. He should not be subjected to the loss of his property simply because he was the heir of the grantor. At the time he parted with his title, the deed from his father had been unrecorded for about fourteen years, and it subsequently remained unrecorded for about thirty-one years such a length of time as would, no doubt, render it impracticable to obtain a further partition or any other restoration to his rights. He answers all the requirements of the statute to claim the

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Syllabus.

portion he received by the partition as a bona fide purchaser. The judgment of the court below must be affirmed.

Judgment affirmed.

MADISON Y. JOHNSON, Administrator, etc.

v.

ORLIN H. GILLETT.

1. EXCEPTIONS-when necessary. An objection to the ruling of the court below in refusing to quash a writ of certiorari sued out under the statute, to remove a cause from a county court to the circuit court, will not avail in the appellate court, on error, unless exception was taken to the decision of the circuit court on that subject.

2. FORM OF JUDGMENT-in inferior courts. No particular form is required in the proceedings of an inferior court, to render its order a judg ment. It is sufficient if it be final, and the party may be injured.

3. SAME-in a county court, on adjudicating a claim against an estate. So, where the order of a county court, in respect to a claim presented against an estate, was, "after having taken the matter under advisement, the court this day, after due deliberation, rejects the claim," this was held to be a sufficiently formal judgment from which an appeal or certiorari would lie 4. ADMINISTRATION OF ESTATES-of claims in favor of the administrator. If an estate is not fully settled, and the administrator has exhausted the personal assets in the payment of other debts than his own, he may prove a claim due to himself personally, from the estate, preparatory to obtaining an order to sell the real estate. If he chooses to postpone the payment of his own claim, and the assets are exhausted, he is not prohibited from making application for an order to sell the real estate, and thus convert it into assets.

5. SAME of paying debts pro rata or in full. Regularly, perhaps, if there are not sufficient personal assets to pay all the debts owing by an estate, without resorting to the real estate, the administrator should pay the debts pro rata out of the personalty, his own debt, if he have one against the estate, included; but if he pays all of the debts, except his own, in full, and thereby exhausts the personal assets, the result would be the same, and he may still prove his own claim, and have an order to sell real estate to pay it.

Statement of the case.

APPEAL from the Circuit Court of Jo Daviess county; the Hon. BENJAMIN R. SHELDON, Judge, presiding.

Orlin H. Gillett, who was administrator of the estate of Benoni R. Gillett, deceased, presented a claim on his own. behalf, against said estate, for allowance in the county court of Jo Daviess county. An administrator pro tem. was appointed to defend the estate. The following orders were entered of record in the county court, concerning said claim:

"Now at this day, the court took up the claims of O. H. Gillett against the said estate of Benoni R. Gillett, deceased, for $1900.86, as a balance due him. D. W. Jackson, Esq. appeared for the administrator, and M. Y. Johnson, Esq. appointed by the court administrator pro tem. to defend the interests of said estate, and objected to said claim being allowed, and after hearing the evidence and the arguments of counsel the court took the case under advisement."

And afterwards, the following order was made:

"In the matter of the claim of Orlin H. Gillett against the estate of Benoni R. Gillett, deceased, for $1900.86, having taken the matter under advisement, the court this day, after due deliberation, rejects the claim."

Subsequently, Orlin H. Gillett removed the cause into the circuit court of Jo Daviess county, by certiorari under the statute, where such proceedings were had that the claim was allowed. The administrator pro tem. thereupon appealed to this court. The other matters concerning which questions arise, are set forth in the opinion of the court.

Mr. MADISON Y. JOHNSON pro se.

Mr. D. W. JACKSON, for the appellee.