
    Case 51 — DESCENT, WARRANTY
    September 13, 1884.
    Massie v. Hiatt’s Adm’r. Kalfus, &c., v. Crawford and Wife.
    APPEAL PROM HENRY CIRCUIT COURT.
    1. A child born within, ten months of the death of the intestate is entitled' to a share in his estate, as if born and in being at the time of intestate’s death.
    2. The court had jurisdiction to sell the land on the petition of the guardian of the two other children; but the sale affected only their rights. The right of the unborn child could not in anywise he affected.
    3. Having an interest in the land, she could not he deprived of it by any proceeding to which she was not a party, and maj' recover such interest from a remote vendee of tlR" purchaser at the judicial sale.
    4. To make an heir responsible for uhe debt of thé ancestor, it must be averred that he has recovered estate, and only to that extent can .he beheld bound.
    5. There is no estoppel of appellees, Crawford and wife.
    W. N. BECKNER por appellant, MASSIE.
    1. It is error to adjudge in favor of Hiatt’s heirs against appellant, because-there has been no eviction of Hiatt’s vendees, and therefore no liability from his heirs to any vendee, immediate or remote. (1 Dana, 254; 4 lb., 255; 5 J. J. Mar., 425; 1 Litt., 395; 1 Mar., 390; Sneed, 37;. 11 B. Mon., 365.) '
    2. Appellant sold the land as commissioner of the Henry Circuit Court. Jo Ella’s part of the land was not sold by him. He sold the entire-tract of land as commissioner, as he was ordered to do, and in no case-can he be liable.
    3. There is no averment in the pleading of appellees, the.Hiatts that they have recovered any estate from their ancestor. "Without this, they cannot be liable for a br’each of warranty to any vendee. "(10 Bush, 240; 3 Dana, 485; 7 J. J. Mar., 353; 16., 254; 5 16., 109; 4 16 , 566;. 2 16., 189; 1 16., 348.)
    B. W. MASTEBSOH" for MASSIE’S adm’r and heirs.
    1. If (as is true) appellant, Massie, recovered the whole of the' purchase-money from Hiatt, he ought to be accountable for it in some way. If Crawford and his wife recover their interest in the land, then appellant should pay to appellees the value thereof, inasmuch as their ancestor has warranted the title to his vendee.
    2. Splitting up of controversies into numerous suits is not favored in. equity.
    3. In case the judgment is in favor of appellee, Crawford, then it is clear that the judgment obtained by appellees, the Hiatts, should also be-affirmed (Collins v. Champ, 15 B. Mon., 122; 1 Story Eq., section 64; Harrison v. Fleming. 7 Mon., 539; 6 Mon., 330.)
    OABBOLL & BABBOUB for appellees, CBAWEOBD and WIDE..
    1. We insist that all the court could do upon the petition of Massie, as guardian of Sarah and Mary Stapleton, was to order the sale of that, which the infants, had they been adults, could have sold themselves, without the intervention of the court. Hot being a party to the proceeding, Mrs. Crawford can not bo affected by it. As to her, it is void. - ■ .
    2. Posthumous children, under the common law, as well as the statute, inherit as though they were living "at their ancestor’s' death. (Kent’s Comm., 4, volume 408; Bev. Stat., chapter 30, section 7; 23 111., 611.).
    3. There is not a single element Of an estoppel in this case. By no act of' appellees have Kalfus or DéJarnette been in any degree prejudiced. (Bigelow on Estoppel, 369.)
   JUDGE PRYOR

delivered the opinion of the court.

Josepli M. Stapleton died intestate, leaving Ms widow and two cliildren surviving Mm. lie was the owner of a tract of land that was sold on the petition of the statutory guardian of these two infants not long after their father’s death, and Wm. Hiatt became the purchaser, and having paid the purchase money, obtained & deed to the land. Shortly after the death of Stapleton, and before this land was sold under the decree, his widow, being pregnant at his death, gave birth to a child, called Jo Ella, who intermarried with one Crawford, and is -an appellee in this action. Massie, as guardian of the two daughters living at their father’s death, Mary -and Sarah, obtained the judgment for the sale of their land (the entire tract) in April, 1859, and in the month of February, 1860, the Commissioner of the ITenry 'Circuit Court sold this land to Hiatt. Hiatt, after he purchased the land, sold it to Kalfus and DeJarnette, ■executing to them a general warranty deed. After the birth of Jo Ella, Massie qualified as her guardian, but ■at no time seems to have recognized her as entitled to an interest in the estate. In making his settlement in the county court he settled as if the two children living at the death of their father were entitled to the entire proceeds of sale. Jo Ella, Mrs. Crawford, was not a party to the petition for a sale of the land, nor has she received her portion of the purchase money.

Actions had been instituted by her sisters against the .guardian, Massie, and his surety for their patrimony, and she also filed a petition', seeking to recover the moneys in the hands of her guardian to which she was ■entitled, and he seems to have had no other estate in his hands than the proceeds of the land sold under the decree of the court. During the progress of the litigation an action was instituted by Jo Ella, Mrs. Crawford, ■and her husband against DeJarnette and Kalfus, Avho were the vendees of Hiatt, alleging that they had just discovered that the land sold belonged to her father; that she was of tender years and knew nothing of his estate, and asking to abandon, or rathfer, did abandon, her claim to the proceeds of the land, insisting that she-was entitled to the land itself, having inherited it from her father.

This case was consolidated with the cases for a settlement of the estate, and Hiatt, the original purchaser of this land at the decretal sale and the vendor to Kalfus and BeJarnette, having died, his widow and heirs filed a petition to be made parties, alleging that they were interested in the controversy by reason of their-liability to BeJarnette and Kalfus on the covenants of' their ancestor in the event Mrs. Crawford recovered the land. The defense of BeJarnette, Kalfus and Hiatt’s heirs was, that the Chancellor having the jurisdiction to sell, the whole title passed to the purchaser, and that Crawford and wife, having elected to sue the guardian in the first place, were estopped from recovering the land.

There can be no estoppel in this case as against Crawford and wife, unless they have done some act by which the rights of Kalfus, Hiatt and BeJarnette have been affected. They must have made some misrepresentation or concealed some fact from these parties that induced them to part with their money, or prevented them from taking such steps as would enable them to obtain relief from the parties of whom they purchased. The mere fact of bringing an action for a settlement against the-guardian for the moneys in his hands can work no estoppel as against Crawford and wife, nor will they be required to stand by their original action, when it appears from the pleadings and proof that they were not aware of the existence of the proceedings for the sale ■of the land-by Massie when they instituted their action ; and 'if they had been, an abandonment of that action would not work an estoppel as against their right to recover the land.

These defendants had all become purchasers of this land at a time when the appellee was an infant and in no condition to assert her rights.

There can be no doubt that the Chancellor had jurisdiction to sell the land on the petition of the guardian, but it affected only the rights of those who were parties to the litigation. If the child had been living at the death of the father, and the statutory guardian had filed a petition in the name only of two of the children, -the third child having been omitted, no title would have passed except the title of those before the court. The ■Chancellor may have the jurisdiction to sell, but his .judgment can affect only those who are parties to the .action.

The General Statutes, chapter 31, subsection 7, of section 2, expressly provides that “any person born of his widow within ten months after the death of the intestate, shall inherit from him in the same manner as if he were in being at the time of such death. ’ ’ There was no sale for re-investment, but a petition filed by the .guardian asking a sale of the entire tract, alleging that there were only two heirs and that their interest required .that a sale should be made, and before the sale was made this child wa§, born. She was, therefore, an heir •of the intestate, and entitled, by descent, to an interest with her sisters in this land.

The defense by the purchasers, that they had no notice -of the pregnancy of the mother or the birth of the child, can avail nothing. The same defense might be interposed in every instance by the purchaser where a party invested with title had been omitted from the record, if permitted in this case.

If the child had an interest in this land, it was not ■deprived of it by the proceeding instituted by the . guardian, to which it was not a party, for if such a ruling is adopted, it must necessarily follow that if the 'two sisters, in whose names the land was sold by their guardian, had been adults, a conveyance by them prior to the birth of their sister would have passed a perfect title to the purchaser. The fact of such a sale having been made, although in good faith and for a reasonable ■ consideration, could not deprive the posthumous child of all interest in her father’s land.

Mr. Kent, in his Commentaries, fourth volume, page 408, says: “Posthumous children * * * inherit in all cases in like manner as if they were born ik the lifetime of the intestate, and had survived him.” This is the universal rule in this country. It is equally the acknowledged principle in the English law, and for all the beneficia] purposes of heirship, a child in ventre sa mere is considered as absolutely born.”

In Detrick v. Myatt, 19 Illinois, 146, it is said: “The interest of a posthumous child in real estate is not divested by a decree against his mother and uncle, under which a sale was made to satisfy the debts of his relatives and ancestors. And in Comell v. Smith, 23 Illinois: “A posthumous child takes directly from the parent, his estate remaining meanwhile in abeyance, so that he is not bound by a decree had against the other . heirs before his birth.” We perceive, therefore, no reason why the appellee, Mrs. Crawford, was not entitled to her interest in the land of the father, and the court below, having so adjudged, that part of the judgment from which the purchasers have appealed is now affirmed.

Massie, the guardian, appeals from that part of the judgment by which he is required to pay to Hiatt’s widow and heirs that portion of the purchase money, paid him for the land, to which Mrs. Crawford would have been entitled if she had been a party to the-action.

The recovery of this money is sought on the ground tliat Hiatt’s widow and heirs will become liable to Kalfus and HeJ arnette, the vendees of their ancestor, on his warranty of title. That liability certainly exists if assets passed to the widow and heirs, as Crawford and wife have recovered the land, but there is no evidence or allegation by either the widow or the heirs that they, or either of them, have satisfied the wairanty to Kalfus and BeJarnette, or that they received assets from their father of sufficient value, or of any value, so as to make them responsible to the vendees for the damages sustained by the breach. They ask to be substituted to the rights of Mrs. Crawford, but how they can be substituted to her right when that right is to recover the land, as has been already adjudged, is not readily perceived.

The heirs of Hiatt have lost nothing, so far as this record shows, and they have failed to present a case in their pleadings where their liability arises. To make an heir responsible for the debt of the ancestor, it must be alleged that he has received assets, and to that extent only is he bound. (See Hagan v. Patterson, 10 Bush; Trustees v. Fleming, 10 Bush; Connal v. Day, 2 Littell.)

There might be some propriety in the vendees of Hiatt, looking to the remote warranty if any exists, but in the present case the appellees, Hiatt’s widow and heirs, from the pleadings were not entitled to the judgment.

The judgment of Hiatt, &c., against Massie is reversed and cause remanded for proceedings consistent with this opinion. Crawford and wife are entitled to their costs against Kalfus, DeJarnette and the Hiatts. Massie, &c., is entitled to costs against the Hiatts.  