#### MARY COULSON et al., Complainants, *vs.*JOHN COULSON, Defendant.

APPEAL IN EQUITY PEOM THE WINNEBAGO CIRCUIT COURT.

Wien the complainant goes to a hearing upon the bill, answer and replication, the answer is evidence as to all matters responsive to the bill, and if it meets all the equities of the bill, the latter must be dismissed.

Eraud is not to be presumed, but must be proved.

The bill in this case was filed by Mary Ooulson and others claiming to be heirs at law of one George Ooulson deceased, to set aside a sale of land made by the administrator of the estate of the said George, to the said John Ooulson.

The bill states that the intestate died possessed of personal estate and choses in action of the value of about $104, and owned real estate of the value of $400; that soon after the death of the intestate one Ohancey E. Cook was appointed administrator on the estate and proceeded to qualify and administer thereon; that the debts of the estate did not amount to more than ten or twelve dollars.

The bill further states that soon after the’ death of the said George Ooulson, the defendant took possession of the land of the intestate, ten acres of which was cleared, fenced and was sowed to Wheat which was growing at the time of his death ; that the defendant harvested the wheat and appropriated it to his own use, and that the use of the land and house thereon was worth more than the improvements made thereon by the defendant.

The bill also states that in the administration account returned by the administrator to the judge of probate, was a charge of $149 for amount paid to J. Ooulson, the defendant, which was fraudulent, and was contrived and intended by the administrator and the said defendant, to deceive the Probate Court as to the indebtedness of the estate, in order to procure an order for the sale of the real estate, that the defendant might, as he after-*80wards did, purchase the same, at the said administrator’s sale for $175; that the proceedings, the order, the contrivance of the account, the representations of the administrator, were fraudulent, and intended to enable the defendant to get the title to said land, for which purpose the administrator and defendant conspired, &c., &c.

The bill alleges that the personal assets were amply sufficient to pay the legal debts of the estate, and expenses of administration, and that the sale of the real estate was unnecessary, and prays that the said sale may be set aside, and declared void, the administrator’s deed canceled, and that the rights and interests of the complainants might be set off to them in severalty, or the property sold and the proceeds distributed.

The defendant in his answer admits that he took possession-of the land in question, fenced in the portion sown to wheat, and made other improvements, all under the order and direction of the judge of the probate; that said improvements were of the value of $300 or $400. He also says, in his answer, that he is ignorant of the doings of the administrator, but that the schedule of debts against the estate returned by the administrator is just and true so far as he knows; that as to his account it is just and true; that it consisted in labor performed and materials furnished, in improvements upon the land, which was done before its appraisal, and the value of the land was greatly enhanced thereby; admits that the land was appraised at $400, but avers that it would not have been appraised at over $175 or $200, but for the improvements which he made thereon.

The defendant, further answering, says that»his account was just, true and lawful, and was approved by the judge of probate; that he would not have had anything to do with the land but for the direction of the judge of probate, by whom he was directed to occupy and improve it; that all his improvements on the land went to the credit of the estate. He denies that he imposed upon the judge of probate, or intended to deceive him, and does not believe that the administrator intended to impose upon or deceive him; denies that he connived with the administrator to deceive or impose .upon the Probate Court; denies that the order of sale was obtained by deception or by any un*81fair means, bnt ayers tbat tbe representations of tbe administrator in tbat bebalf were bonest and true, and tbe sale of tbe land was actually necessary to pay tbe debts of tbe estate, and expenses of administration ; tbat defendant did not know of tbe said application until tbe land was advertised for sale; and denies all combination, conspiracy and fraud fully and specifically. Tbe case was brought to bearing upon bill, answer and replication, wben tbe complainants’ bill .was dismissed; from wbicb decree they appealed to tbis court.

*A. Hand,*for tbe appellants.

*By the Court,*

Cole, J.

There can be no doubt of tbe general correctness of tbe points made by tbe counsel of tbe appellants, but we do not think they bear upon tbis case. It would be a great outrage upon common justice to sustain a sale brought .about by fraud and collusion between tbe administrator and tbe purchaser, as tbis is alleged to have been done. And if these charges of fraud bad been sustained by testimony, if evidence bad been adduced to show tbat tbe administrator of tbe estate of George Coulson and tbe appellee bad manufactured spurious accounts against tbe estate to deceive and impose upon tbe Probate Court, and mislead him as to its real condition, for tbe purpose of obtaining an order to sell tbe land in controversy, tbis court could give no countenance to such proceedings. But for aught tbat appears in tbe case, tbe conduct of tbe administrator and of tbe appellee about tbe estate was proper and legal. Tbe administrator found tbat tbe personal property was insufficient to pay tbe debts against tbe estate, and charges of administration, and be took tbe necessary steps to obtain an order to sell tbe real estate. An order was granted, and tbe land was advertised and sold according to law. Tbe appellee bought tbe land at tbe sale, being tbe highest and best bidder therefor. Aside from tbe unsupported charges of fraud in tbe bill, there is nothing in tbe case to impeach, in any respect, tbe. *82regularity .and fairness of. all tbe proceedings.. No. .testimony whatever bas been taken, and tbe parties went ’to a bearing upon bill, answer and replication. Tbe appellee in bis answer denies fully and distinctly, under oatb, all tbe charges of fraud in tbe bill, and relieves himself from all suspicion.- .'He says that be knows nothing of any fraud in tbe conduct of tbe administrator in settling tbe estate, or in- obtaining the-order of sale,'owns that be bought tbe. land in good faith, for .a valuable consideration, “ without combination, conspiracy, fraud, understanding, or bargain with any person or persons to procure tbe sale of said land in any way, shape or manner, or for-the purpose of deceiving tbe court, or defrauding any one.” Tbe answer is full, and strictly responsive to tbe bill, and must prevail until overcome by competent and sufficient testimony.

Tbe decree of tbe Circuit Court in dismissing tbe bill must be affirmed,-with costs.