In Holyoke v. Haskins, 9 Pick. 258, the court held an administrator's sale of land void, more than twenty years after it was made, because The administrator can assert no greater the letters of administration had been improp-right than his intestate might have done. The erly granted. The court said: "The incon- language of the supreme court of Illinois is: venience of vacating acts of a judicial nature, "That an administrator is authorized by stata long time after they have passed, is undoubt- ute, after he has exhausted the personal estate edly considerable; but if they are void, there in the payment of debts, to apply to the circuit seems to be no lapse of time which will make court and obtain leave to sell so much of the them valid." (P. 263.) real estate of which the intestate 'died seised' as will be sufficient to discharge the residue of the debts." Choteau v. Jones, 11 Ill. 319.

It is no answer to this to say that as the deed to Lucas was not on record the seisen was apparently in Spotts. The power of the adminis trator to convert realty into assets is an extraAll the proceedings in the circuit court of Adams county, to subject the land in contro-ordinary one, created by the statute, and must versy to sale, for the payment of the debts of the intestate, were void, for the reason that the law authorizes such proceedings only in respect to lands, of which the intestate died seised, and it is shown, by the evidence in the case, that he did not die seised of this land. See Gale's Stat. 711.

This is not to be answered by saying that the question of the seisin of the intestate has been adjudicated by the circuit court of Adams county, and is not, therefore, open to inquiry here. It has not been adjudicated and could aot have been, for it was not in issue before the court. The petition of the administrator did not contain the necessary statutory averments to give the court jurisdiction, and the court should not have proceeded with the case. The proceeding was wholly ex parte. The infant heirs were non-residents were not made parties to the petition; were not represented before the court; and it is not probable the petition was ever read to the court, or that the court was aware of its deficiencies.

satisfied all the calls of the writ as fully and exactly as the land in Brown county, and he could deliver neither. He would be confronted with a patent ambiguity, which would so vitiate the writ as to discharge him from the obligation to execute it.

That the ambiguity exists cannot be questioned. The only inquiry is as to whether it is latent or patent. If patent, it cannot be explained or removed, but renders the whole proceeding void. No rule of law is better settled. It seems equally clear that the ambiguity is patent. The rule is that if, when the instru ment is looked at in the light of all the circumstances of which the court must take judicial notice, the ambiguity is disclosed, it is patent. It is inherent in the instrument itself, and becomes apparent at once upon inspection. It does not exist outside of the instrument and await development by evidence; but the court at once takes cognizance of it, before and independent of the production of evidence.

In the case of Smith v. Hileman, 1 Scam. 324, the supreme court of Ill., in a collateral proceeding, held an administrator's sale of land void, long after it had been made, for the reason alone that what the statute said should be done had not been done. "A special power granted by statute affecting the rights of individuals, and which devests the title to real estate, ought to be strictly pursued, and should appear to be so on the face of the proceeding." An administrator sells only the interest which was vested in the intestate, and he makes no warranty, either for himself or the estate which he represents. The rule of caveat emptions under the surveys. for is strictly applicable. Bingham v. Maxcy, 15 Ill. 296; McManus v. Keith, 49 Ill. 390.

Among other things essential to give that jurisdiction, it was necessary that the land should be brought before the court by apt and appropriate words of description, which would distinguish it from all other lands, and enable all persons to identify it by reference to such description alone, without recourse to extraneous evidence.

This was not done. The only description of the land given in the petition, the exhibit filed therewith, the notice, the decree of sale, or the report of sale in any of the papers connected with the case is as follows: "S. E. 4, 1 S., 4 W.," to which it is fair to add the words "In the state of Illinois," as the petition states that Spotts "died intestate, leaving in this state the real property described in the copy of the inventory marked exhibit A."

The whole of the description, then, taken together and connectedly, is "S. E. 4, 1 S., 4 W., in the state of Illinois." It was decreed against by the same description, advertised for sale by the same description, and by the same description sold and reported by the adminis

trators.

Now, by what right does the purchaser simply of the "S. E. 4, 1 S., 4 W. in the state of Illinois," claim the "southeast quarter of section four, in township one south, range four west, in Brown Co., Ill.?"

The courts take judicial notice of the geographical facts and features of the country; of the states and of the divisions of the states into counties and parishes; of the government surveys, and of the legal subdivision of the public lands into sections and quarter sections, and of the relative situation of quarter sec

Mossman v. Forrest, 27 Ind. 233; Atwater v. Schenck, 9 Wis. 160; Prieger v. Insurance Co. 6 Wis. 89.

No base line, meridian, or county, is mentioned in the description of the land in the proceedings of the Adams circuit court. But the court will take judicial notice that there are, in Illinois, different base lines and meridians, and that there is a quarter section of land in Brown county, and another in Washington county; which equally answers to the description given in the petition, and other proceedings, viz.: "S. E. 4, 1 S., 4 W., in the state of Illinois." Which was intended the court cannot tell.

The case of White v. Herman, 51 Ill. 244, which is the last case upon the subject of ambiguity which has been before the supreme court of Illinois, is peculiarly pertinent. The question, very similar to the one now before the court, arose in that case, and the court held: first. That it would take judicial notice of the public surveys of land; second. That if the ambiguity was patent, it could not be obviated by extrinsic evidence, and third. That the character of the ambiguity was to be determined by the ability or inability of a person, with a knowledge of the surveys, to locate the land, by the aid alone of the description contained in the instrument. That if a surveyor, with the instrument before him, could locate the land with certainty, then there was no ambiguity; but if he could not thus locate it, then the ambiguity was patent and not open to explanation.

If the two descriptions necessarily mean the same thing, and must necessarily be applied to the same quarter section of land, and to that The cases of Voorhees v. Jackson, 10 Pet. only, there will be no difficulty; but do they? 449; Grignon v. Astor, 2 How. 319, and FlorenCould the marshal of the state, upon having a tine v. Barton, 2 Wall. 210, 17 L. ed. 783, dehabere facias placed in his hands for the deliv- cided by this court, have not been overlooked. ery of the possession of the "S. E. 4, 1 S., 4 W., No question decided nor principle settled, in in the state of Illinois," give possession of the those cases, is re-opened or re-argued here. In land in controversy? Clearly not. He would them all, the courts which pronounced the debe bound to take notice that there was a quar-cree of sale had jurisdiction of parties and subter section of land in Washington county which ject-matter; and having jurisdiction, had the

undoubted right to hear and adjudicate all | questions which arose. The real estate in all those cases was brought distinctly before the court, by words of apt description, which distinguished it from all other property, and in no other way could the court acquire jurisdiction. A description which left it altogether uncertain which of two pieces of land was intended, could give the court no power to decree the sale of either of them. A description which was alike applicable to a quarter section of land in Brown county, and a quarter section in Washington county, would give the courts just the same right to decree the sale of that in the one as in the other. It would have no jurisdiction of the subject-matter in either county, and could decree against neither.

Messrs. Skinner, Marsh & Frost, for defendant in error:

The supreme court of Illinois has repeatedly held that, in case of administrator's sale of land, if jurisdiction in the court appears, no error or irregularity in the proceedings will affect the title of the purchaser, and always has indulged in liberal intendments in favor of the jurisdiction.

described in a mortgage; held that where some part of the description is subordinate and incorrect, it may be rejected as surplusage, leaving perfect description. Myers v. Ladd, 26 111. 416.

Although the meridian is omitted in the petition, the order finds due notice given, and orders sale of the lands, and the notice-a part of the record and upon which the court on the hearing acted-describes the same 4th section of lands in the petition set forth, and locates them as the fourth principal meridian.

After the lapse of more than thirty years from this sale, as in this case, continuous claim under it, and the payment of taxes, courts will be liberal in intendments in support of the title derived through it, and especially as against newly discovered deeds first recorded in 1864.

The notice, the petition, the exhibits and the order of sale, will be taken together, and if, on inspection, a substantial description of this land is found in any of them, it is enough, even without the aid of facts aliunde, showing that this tract of land was intended by the petition, order and administrator's deed.

In further support of our position that jurisIn Moore v. Neil, 39 Ill. 256, that court held diction appears from the record, and that the that, though the notice contained in the record intendments of law are in favor of the title was defective, a recital in the decree that it ap-under judicial sale, we refer to Buckmaster v. peared that notice had been given according to Jackson, 3 Scam. 104; Wells v. Mason, 4 Scam. law, was sufficient to give jurisdiction. Irregu- 84; Kennedy v. Greer, 13 Ill. 432. lar appointment of administrator, irregular sale, or different description of the property in decree from that in petition, will not affect title of purchaser. Schnell v. Chicago, 38 Ill. 382. A notice without date and without giving the state or the court, held sufficient, and that a wrong address of petition or want of guardian ad litem would not affect validity of title. Goudy v. Hall, 36 Ill. 313.

Recital of service of process in decree is conclusive in collateral proceedings. Banks v. Banks, 31 Ill. 162.

A notice which gave no state nor court, nor description of the property, nor names of heirs, held sufficient to give jurisdiction. 37

Ill. 88.

Jurisdiction of the court by notice and petition appearing, the sale will be valid, no matter what error or irregularity intervenes. Stow v. Kimball, 28 Ill. 93.

Reference to schedule for amount of indebtedness of the estate, is sufficient. Cromine v. Tharp, 42 Ill. 120.

In Dougherty v. Purdy, 18 Ill. 206, the deed described the land, omitting county and merid

lan.

The court held parol proof admissible to show the land intended to be conveyed, to apply the conveyance to the fourth principal meridian, and to show what land the grantor claimed.

The record shows that this land was conveyed to Samuel Spotts in 1818, that he paid taxes on it, and had a list of lands, of which this was one, in the military tract of Illinois, fourth principle meridian and was not known to have or claim any other lands. Had this decree been his deed, he would be presumed to have intended to convey the lands he in fact owned and claimed, this tract, and the decree and administrator's deed stand for his deed with like intendment.

Parol evidence admitted, to identify premises

In case of administrator's sale of land, if the record shows petition filed and order of sale, it will be presumed that all facts were proved, necessary to give jurisdiction and to authorize the order. Grignon v. Astor, 2 How. 319.

In Florentine v. Barton, 2 Wall. 210, 17 L. ed. 783, this court held that, in case of administrator's sales in Illinois, of decedent's estate to pay debts, it is enough to sustain title under such sale, that an order of the court authorizing the sale appear; and that in such case, especially after great lapse of time, everything necessary to give jurisdiction and justify the order will be presumed.

In Cooper v. Reynolds, 10 Wall. 308, 19 L. ed. 931, this court says that defective or irregular affidavits, and notice in case of attachment in rem, do not affect the validity of the judgment.

Voorhees v. Jackson, 10 Pet. 449.

But we submit that this order of sale would not be reversed for error in a direct proceeding for that purpose.

As to the refusal of the court to charge the jury that no title passed under the administrator's sale and deed to Hennen, because of the deed of Spotts to Lucas, dated Sep. 12, 1820, and recorded Jan. 2, 1864, we submit there is no error, on account of the operation of the registration laws of Illinois. The statute then and now in force is as follows:

"Sec. 23. All deeds, mortgages or instruments of record, which are required to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice, and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice, until the same shall be filed for record."

And the preceding section, 22, provides that

"Deeds or other instruments relating to or af fecting the title to real estate, shall be recorded in the county in which such real estate is situated."

R. S. of Ill. 1845, p. 108, §§ 22, 23. And the courts of Illinois apply to this statute to all conveyances of land, whether by private or judicial sale.

He proved by administrator's deed to Hennen, color of title made in good faith, and he proved payment of taxes under the color for seven successive years, while the land was vacant and unoccupied, and possession taken and enjoyed under it. The possession of Glenn, who contracted for the land of Hennen in 1857, and occupied it and canceled his purchase in 1859, was the posession in law of Hennen, the vendor; and defendant in error coming to the Hennen title, could maintain ejectment to recover that possession when another had obtained it.

In Martin v. Dryden, 1 Gilm. 187, the supreme court of Illinois decides that where a creditor in proceedings in attachment gets a levy on land, without notice of a prior, unrecorded conveyance of the creditor, the same, may be sold after judgment on execution, without the title being affected by notice of the prior deed after the levy. So in case of judg-nen, and claiming no title, released to McNitt, ment and execution at common law.

Cook v. Hall, 1 Gilm. 575.

in Choteau v. Jones, 11 Ill. 300, the same court said that the Illinois registry laws apply to all conveyances of land; that deed from the heir, without notice of a prior unrecorded deed from the ancestor, will pass the title to the grantee of the heir; that these laws apply to conveyances under judicial sales; and decided that an administrator's deed took precedence of a prior unrecorded deed of the intestate, and carried the title.

In Kennedy v. Northrup, 15 Ill. 148, the same court decides that, under the operation of the statutes of Illinois, a conveyance from the heir, without notice of a prior unrecorded deed of the ancestor, carried the title as against the prior deed.

Brookfield v. Goodrich, 32 Ill. 363.

In Curtis v. Root, 28 Ill. 367, held, that a purchaser at a judicial sale is chargeable with such notice of prior incumbrance only as appears of record."

In Bowen v. Prout, 52 Ill. 354, held, that an heir who in partition with his co-heirs had given other land in the partition for their terest in the land in question, without notice of a prior unrecorded deed for it of the ancestor, was protected against prior deeds, to the extent of the interest therein so acquired from his co-heirs.

So Singleton was in possession in 1861, under a canceled contract to purchase from Hen

who took possession before the adverse claim to the land, and set it up as paramount title.

See depositions of Sherman, Moore, Glenn,
McPhail, Long, and Singleton.

This is the law of the supreme court of Ill.
Paullin v. Hale, 40 Ill. 274.

The language of the petition, that Spotts died leaving the lands in this state mentioned in the schedule, a part of the petition, and fully described, with meridians, in the notice, a part of the record, and by the decree found to have been duly published, is equivalent to the words of the statute, "died seised," and can sensibly be construed as meaning nothing else.

It is absurd to say that jurisdiction of the court depended upon the deceased being seised of the land, either in fact or in fee simple, and that the fact may now be proved to defeat jurisdiction. Such a rule would defeat jurisdiction in multitudes of cases, by facts aliunde the record, and titles honestly acquired under judicial sales, and the entire policy of our reg istry laws.

But if such seisen were necessary, it will be presumed in favor of a court of general jurisin-diction, that it was proved. If there was a title appearing in the intestate, which, under the law, another could acquire by his deed, made in life a thing vendible under the operation of the law-judicial sale under order of a competent court would do the same as the deed in life of the intestate.

By force of the registry statutes, Spotts died seised of the land as to creditors and purchasers without notice of the prior unrecorded deed of Spotts. The creditors had a lien on the land for payment of their claims, and Hennen purchased, took his conveyance, and paid for the land sold, to satisfy those claims, without notice of the prior deed of Spotts, had his deed duly recorded in 1841, and the deed to Spotts was not recorded until 1864.

The judicial sale did what the intestate could have done had he been living, and, in contemplation of law, is the same as his deed. The administrator's deed affected real estate; was without notice of the prior unrecorded deed; was for value paid; and hence, by the very words of the statute, it took effect from the recording of the same, and precedent to the prior unrecorded deed. The language of the statute authorizing administrators' sales of land, will be taken and construed in connection with the registry statute, so that both have harmonious operation.

The defendant in error was entitled to recover, aside from proof of paramount title derived from the United States.

The words "owners of land," in a statute, construed to include those having an equitable interest.

Danforth v. Suydam, 4 N. Y. 66.

To the objection that the circuit court had no jurisdiction to make the order of sale, because it is recited in the letters of administration that Spotts, the intestate, was of the state of Louisiana, and that it does not appear by the record that Archibald Williams was a public administrator, we answer that the word "or" as used, means "and," according to the surd and in conflict with the other provisions reason of the statute, otherwise it would be abof the same section, giving successive right of administration to husband, widow, next of kin and creditors of the intestate, and against uniform usage in this state.

Gale, Stat. of Ill. 698, § 51.

Upon the construction contended for, if the intestate be a non-resident of the state, and either widow, next of kin or creditors, be nonresidents, neither could administer, although resident in the state. In other words, unless

The deed from Spotts to Lucas cannot affect The defendant gave in evidence a deed from any question arising in the case, and must be Spotts to John Lucas, dated September 12, excluded from consideration. All the instruc1820, recorded January 2, 1864, and a sequence tions asked by the plaintiffs in error assumed of deeds from Lucas down to McNitt, one of its efficacy for the purposes to which they rethe plaintiffs in error. McNitt was in posses-ferred. The instructions were, therefore, propsion of the premises.