Opinion of the Court.

rendered of said goods and chattels." And also that the "administrator has applied the proceeds of all the personal property of said deceased, which has come into his possession, to the payment of debts due by said deceased; and that there is a large amount of such debts still unsatisfied, for the payment of which there are no assets in the hands of said administrator."

This would seem to be sufficient. If there was nothing to inventory or sell, there could be no inventory or sale bill, and the finding of the indebtedness is distinct and full enough for all practical purposes. Bree et al. v. Bree, 51 Ill. 367; Madden v. Cooper, 47 id. 359; Shoemate v. Lockridge, Admr. 53 id. 503.

The fact that appellants were not named in the notice published by the administrator for the purpose of obtaining the decree authorizing him to sell the property, is not urged as ground of objection to the decree, nor could it be. Under the statute then in force, it was not essential that the names of the heirs should be given in the notice. Gibson v. Roll, 27 Ill. 88; Stow v. Kimball, 28 id. 93; Morris v. Hogle, 37 id. 155.

With regard to the fraud charged in the administration of the estate, it is sufficient to say there is no evidence thereof by which those claiming under the purchase at the administrator's sale can be affected, even if we were to concede, which we do not, that it is clearly proved that the administrator's conduct was fraudulent.

There remains but a single additional objection, relating to the title derived at the administrator's sale, which we deem it necessary to notice.

The appellee Paul Cornell purchased and received the administrator's deed for the south-west quarter of section 14, the remainder of the property being purchased by and conveyed to the appellee Ralston B. Palmer. Subsequently, the appellee Mark Skinner filed his bill to foreclose his mortgage, in the Cook County Court of Common Pleas, making the administrator, widow, and all the heirs of Bostwick, defendants, except Mary A. Dunn and Laura A. Leeber, who were omitted.

De

Opinion of the Court.

cree of foreclosure was rendered and the property directed to be sold by the master in chancery, which was done. At this sale, the appellees Paul Cornell and John M. Krum became the purchasers of the property.

It is objected that the appellees Paul Cornell and Mark Skinner, and those in privity with them, are therefore estopped to claim title under the administrator's sale, because, it is said, Cornell was the solicitor of Skinner in filing the bill to foreclose, and that the institution of the suit was a solemn avowal that the equity of redemption to be foreclosed was then in the defendants, to which Cornell and Krum made themselves parties by purchasing under the decree.

The record does not support the assertion that Cornell was Skinner's solicitor, although we do not attach any importance to the fact.

If the defendants to the bill of foreclosure had redeemed under the decree, it might be they would be entitled to invoke its protection. But they did not, and if it was obligatory upon them, so as to be binding for any purpose as an estoppel, they are concluded by it. As to the two heirs, Mary A. Dunn and Laura A. Leeber, who were not parties to the bill, and therefore are not bound by the decree, we think it clear they can not set it up as an estoppel. Bigelow on Estoppel (1st Ed.), 46-7, 67-8; 1 Greenleaf's Evidence, 524. And those who claim in right of them occupy no better position.

Entertaining the views we have expressed, our opinion must be that the decree below should be affirmed, which is accordingly done.

Decree affirmed.

Syllabus.

LOUIS BUSH et al. v. BENJAMIN F. SHERMAN,

and

BENJAMIN F. SHERMAN V. LOUIS BUSH et al.

1. MORTGAGE-mortgagor voluntarily going within the enemy's lines. Where a mortgagor voluntarily went within the enemy's lines, with a view to cast his lot with those who were in open rebellion against the government, the right of the mortgagee to execute the power of sale contained in the mortgage was not thereby impaired.

2. SAME-assignee may execute power of sale. The assignee of a mortgage containing a power of sale, being the legal holder of the indebtedness thereby secured, is authorized to execute the power of sale.

3. SAME-whether property is released as to mortgagor by agreement to release as to purchaser. A mortgagor sold one-half of the mortgaged premi. ses, and the mortgagee agreed with the mortgagor and purchaser that, after a certain payment was made on the mortgage debt, he would hold the half of the premises so sold for one-half of the balance of the mortgage debt only, with an express proviso that the mortgagor should not be released from the payment of any portion of the mortgage debt. Afterwards, the installment required to be paid was paid, as was also one-half of the residue of the mortgage debt, but no application was made to have the holder apply it in discharge of the mortgage indebtedness on the half so sold, and it was not so applied. After making some payments, but before the one-half of the mortgage debt was paid, the purchaser, being unable to complete his purchase, reconveyed, for a nominal consideration, to the mortgagor, the half so purchased by him, losing all benefit of what he had paid: Held, that the half so sold and reconveyed to the mortgagor was not released from the mortgage.

4. Such a contract, although without any consideration, would be binding upon the mortgagee as to the purchaser, if he acted upon it and paid his money, but would not be as to the mortgagor; and when the property was reconveyed by the party for whose benefit the contract was made, to the mortgagor, who, by the express terms of the contract, was not released from the payment of the mortgage debt, the contract as to him being without consideration, was a nullity, and the mortgagor had no right to have payments subsequently made on the mortgage debt applied upon any particular part of the mortgaged premises.

5. SAME what notice of sale should contain. It is sufficient if the notice of sale under a mortgage containing a power of sale contains enough to show there has been a default in the conditions, and also that it recites any facts the mortgage itself may provide it shall contain.

Statement of the case.

6. SALE burden of proof on the party charging fraud. When a sale under a mortgage is challenged on the ground of fraud and collusion between the seller and the buyer, the burden of proof is upon the party making the charge to prove it.

7. TRUSTEE-after the trust is executed, trustee may buy property. After a trustee has made a sale, under his power as trustee, in good faith, and has fully discharged his trust, so that he no longer occupies confidential relations to any one claiming the property, he is not by law forbidden to deal with what was the trust property the same as a stranger, and, acting in good faith, he may become the owner by purchase or otherwise.

8. TRUSTEE'S SALE―acquiescence waives all irregularities. Acquiescence, unexplained, for any considerable time, in a sale which is voidable, but not void, will be deemed a waiver of all mere irregularities that may have intervened.

9. Ignorance of facts which are claimed as vitiating a sale, is not a suffi cient explanation of long acquiescence in such sale, if such ignorance is the result of the conduct of the party in voluntarily going into the mili tary service of the Southern States, in the late civil war.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

On the 23d day of May, 1856, Winchester Hall, one of complainants, purchased of Ayers and Hamilton a block of ground, which included within its limits the lands involved in this controversy. A portion of the purchase money was paid down, and the remainder, represented by six promissory notes, was secured by mortgage upon the premises, containing a power of sale. The notes matured in sets of two, of equal amount, in one, two and three years from the date of the sale. According to the testimony of Bush, the real estate was bought on the joint account of himself, Hall, and Richard, since deceased, whose heirs, by an amendment to the bill, have been made complainants, and that an agreement, in writing, showing the interests of the several parties, was signed at the time, but, for convenience, the title was taken in the name of Hall, who resided, or was about to reside, in Chicago, the other partners both residing in the State of Louisiana.

It was not disclosed to the vendors any person other than Hall had any interest in the purchase, nor was the alleged

11-80TH ILL.

Statement of the case.

agreement made a matter of record. So far as the public could know, or had any reason to believe, Hall was the sole owner. He treated the property as having the exclusive ownership, making contracts in relation thereto, and not disclosing that any one else had any interest in it.

On the 23d day of March, 1857, Hall sold the west half of the block to Joseph Smith, but the incumbrance created by the prior mortgage resting upon the entire premises, Smith would not consummate the purchase unless Ayers and Hamilton would agree that that portion he was proposing to buy might in some way be released from the mortgage indebtedness, so that he might acquire a clear title when he should pay for the same. Hall procured an agreement from Ayers and Hamilton, that, in the event of payment to them, at maturity, the installments to become due on the 23d day of May, 1857, they would agree to hold the west half of the block liable for only one-half of the residue of the unpaid purchase money, with the distinct reservation, however, that Hall was not to be released from the payment of any portion of the mortgage indebtedness. That arrangement was satisfactory to Smith, and was indorsed on the back of his contract with Hall, both of which were recorded on the following day. The installments maturing on the 23d day of May, 1857, were fully paid, and subsequently one half of the residue of the purchase money, but no application was made to have the holder apply it in discharge of the mortgage indebtedness on the west half of the block which had been sold to Smith, nor was it ever so. applied.

In the meantime, Sherman had bought of Ayers and Hamilton such of Hall's notes as were unpaid, and took an assignment of both the notes and mortgage, and thereafter controlled them. After making some payments, Smith found he would be unable to comply with his contract, and, for a nominal consideration, reconveyed the property to Hall, losing all benefit of what he had paid. On the 5th day of June, 1860, Hall conveyed by deed all his interest in the premises to Bush, to be by him held in trust for the parties originally interested,