where there are no creditors to complain cannot be questioned. Heirs and devisees who claim merely as volunteers have no right to attack such conveyance on the ground that it was voluntary and had the effect of decreasing the estate to which they would be entitled upon the death of the grantor, but so far as the rights of Hanna and the collateral heirs are concerned, they cannot be affected by the determination of the question raised in respect to the delivery of the Severance deeds. If the deeds were not delivered, then the title to the whole premises was in Joshua Rhodes at the time he made the contract of sale with Hanna, and that contract entitled Hanna to a deed for the whole of the premises upon compliance with its terms. If the deeds were delivered and Mrs. Rhodes became the owner of the north eighty acres prior to the execution of the contract with Hanna, while she did not sign the contract she knew that the sale had been made, was present at the time, and set up no claim under her unrecorded deed and made no objection to the inclusion of the north eighty in the sale. Beside thus estopping herself as against Hanna, who had no notice that she claimed any interest in fee in the premises, she has ratified and confirmed the sale by filing the bill for specific performance, in which she offered to convey, and by procuring a decree under which she has actually conveyed the whole of said premises pursuant to the contract made by her husband. Hanna was entitled, under his contract, to the fee simple title to the entire farm, and this he obtained either by the deed made by Mrs. Rhodes as administratrix, or partly through that deed and partly through her deed in her individual capacity. In either event the title vested in him and his contract was satisfied.

Whatever of controversy may remain to be settled among the heirs of Joshua Rhodes, it must be held that Hanna is entitled to hold the land under his deed, unmolested by any of the conflicting claims to the purchase money. If, as we have sought to show, Hanna must at all

events be held to be the exclusive owner of the real estate in controversy, this would be a complete defense to the prayer of appellant's bill for a partition. There can be no partition of this land among the heirs of Joshua Rhodes without setting aside the contract of sale, the decree for the specific performance thereof, and the deed made to Hanna in execution of the decree, and we see no grounds for disturbing either.

Again, the situation presented by this record requires the application of the doctrine of equitable conversion. That doctrine rests on the maxim that equity regards that as done which ought to be done, and the situation presented by this record is a fitting illustration of the maxim. Under that rule real estate may, under proper circumstances, be regarded, in equity, as personal property and personal estate may be regarded as real, and transmissible and descendible as such. (Eaton on Equity, sec. 96; Haward v. Peavey, 128 Ill. 430.) When a valid, enforcible contract has been entered into for the sale of real estate, as between the vendor and vendee equity regards the vendee as the owner of the land and the vendor as the owner of the purchase money, which is personalty. The vendor is regarded as the trustee of the naked legal title for the benefit of the vendee, and the vendee as the trustee of the purchase money for the benefit of the vendor. (Lombard v. Chicago Sinai Congregation, 64 Ill. 477; Wright v. Troutman, 81 id. 374; Lewis v. Shearer, 189 id. 184.) Where the owner of real estate thus enters into a valid contract for its sale, the nature of his estate under the doctrine of equitable conversion is changed and the real estate will be regarded as converted into personal property, and, in case of the death of the vendor before the contract is performed, it will be treated as assets in the hands of his personal representative. 9 Cyc. 826; Keep v. Miller, 42 N. J. Eq. 100; 6 Atl. Rep. 495; Williams v. Haddock, 145 N. Y. 144; 39 N. E. Rep. 825; Bender v. Luckenbach, 162 Pa. St. 18; 29 Atl. Rep. 295.

The cases of Wright v. Minshall, 72 Ill. 584, Covey v. Dinsmoor, 226 id. 438, and Adams v. Peabody Coal Co. 230 id. 469, do not establish any different doctrine. They were all cases involving the construction of wills. In each of them the testator had contracted to sell real estate which was also disposed of by the will. The doctrine of equitable conversion was not allowed to interfere with the clearly expressed intention of the testators. While the contracts for the conveyance of the real estate were sustained, the proceeds were treated as real estate and passed as such to the respective devisees under the wills. The reason the doctrine of equitable conversion was not applied in those cases was, that it would have defeated the intention of the testators as the same was gathered from the general context of the wills involved. But in the case at bar the vendor of the real estate died intestate. There is nothing here to prevent the full operation of the doctrine of equitable conversion. Applying that doctrine, Joshua Rhodes owned none of the real estate at the time of his death which in this proceeding is sought to be partitioned among his collateral heirs. Instead of the real estate, at the time of his death he owned the obligation of Hanna to pay the consideration, and this was personalty, and as such belongs to the administratrix, to be by her disposed of and distributed in due course of administration. It makes no difference whether Joshua Rhodes owned all of the farm or only a part and his wife the remainder. The contract was valid and enforcible, and the doctrine of equitable conversion applies to and converts whatever interest Joshua Rhodes had in the land into personal property. Under this view, the question whether Martha S. Rhodes is the legally adopted daughter of Joshua Rhodes becomes unimportant. If she be the adopted daughter, then the personal estate of her adoptive father would, under the Statute of Descent, pass to her and the widow. If she was not legally adopted, then Joshua Rhodes died leaving no child or children or descendants of

such child or children, and the widow, in that contingency, would be entitled to all of the personal property. In any view that can be taken of this question the collateral heirs can have no interest in the personal estate of Joshua Rhodes. The only persons now that can have any interest in the question in respect to the adoption of Martha S. Rhodes are the widow and Martha S. Rhodes, and neither of them is making any question as to the regularity and binding effect of the adoption proceeding.

The circuit court of Kane county did not err in dismissing appellant's bill, and its decree will accordingly be affirmed. Decree affirmed.

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. EDWARD S. WILSON et al.-(JOHN A. KING, Plaintiff in Error.)

Opinion filed October 28, 1913.

1. PLEADING—when plea is bad for not averring ultimate fact. A plea which does not aver the ultimate fact relied upon in defense of the action but only avers evidentiary facts which require the aid of a rebuttable presumption to support them, is bad upon general demurrer.

2. SAME when a plea attempting to set up payment is insufficient. In an action against sureties on a State officer's bond to recover on a warrant unlawfully drawn upon the treasury, a plea which attempts to set up a former recovery and satisfaction in a suit against another State officer is insufficient, where it does not allege directly that the particular warrant was included in the former judgment, but merely alleges facts showing that the warrant was included in the declaration but that the judgment was for much less than the amount declared upon, thus leaving it uncertain whether the amount of such warrant was included in the judgment.

3. PAYMENT there can be but one recovery for money wrongfully drawn from State treasury. Where several State officers are involved in the unlawful drawing of money from the State treasury there can be but one recovery for the money, and if the amount

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of a certain warrant is included in a judgment against one of the State officers and the judgment is paid, that fact may be pleaded and proved as a defense to an action against the other officers or their bondsmen to recover upon such warrant.

4. The other questions presented in this case are controlled by the decision in People v. Hamill, 259 Ill. 506.

WRIT OF ERROR to the Municipal Court of Chicago; the Hon. HARRY OLSON, Judge, presiding.

JOHN LYNCH, ADOLPH KRAUS, SAMUEL Alschuler, and CHARLES R. HOLDEN, for plaintiff in error.

PATRICK J. LUCEY, Attorney General, and LESter H. STRAWN, (B. F. LINCOLN, of counsel,) for the People.

Mr. CHIEF JUSTICE COOKE delivered the opinion of the

court:

This is a writ of error sued out by John A. King to reverse a judgment rendered by the municipal court of Chicago against him, in favor of the People of the State of Illinois, for the sum of $8416.71 and costs of suit. The action was upon the official bond given by Edward S. Wilson, as Treasurer of the State of Illinois, on November 26, 1890, and was brought against Wilson and all the sureties upon his bond, including John A. King, but the latter was the only defendant served with summons or appearing in the suit.

The declaration alleges that during Wilson's term of office there came into his hands, as State Treasurer, large sums of money which had been collected, according to law, to pay principal and interest upon municipal bonds registered, according to law, in the office of the Auditor of Public Accounts of the State of Illinois; that there also came into his hands, as such treasurer, divers other large sums of money which had been levied and collected, as provided by law, for the purpose of paying the ordinary costs to the