Statement of the case. computed to September 1, 1883, $993.10; that defendant Rankin has paid to Barcroft & Co., interest computed on the same to September 1, 1883, $8837.60; that defendant has paid taxes on the land, with interest to September 1, 1883, $1180.27, as follows: Taxes for year 1872, paid Jan. 15, 1874, $252.81; interest on same nine years seven and a half Year 1872, paid Jan. 15, 1874, $94.47; interest on Amount taxes paid to May, 1876, $399.24 130.75 276.21 191.01 183.06 $1180.27 The master then finds that Robert Rankin was, on the 19th day of November, 1873, declared a bankrupt, and that his assigns in bankruptcy sold all claims that Robert Rankin had against these lands, for interest, taxes, and $4000 time draft paid Barcroft & Co., on the 2d day of January, 1877, and one John D. Rankin became the purchaser of said claims, and assigned the same to Robert Rankin for the sum of $150, with interest on the same to September 1, 1883, ($59.25,) and proceeds: "I find there is due Robert Rankin on account of these claims, computing interest to September 1, 1883, $209.25. I also find due Robert Rankin for taxes paid on the lands from January 29, 1877, to 1883, with interest from date of payment, to September 1, 1883, $899.30." He also finds Rankin entitled to $75 per annum for six years' service as trustee, ($450,) and $300 for attorney's fees in this case, making the total amount allowed Rankin, $1858.55. He further finds that Rankin has collected rents amounting to $1467.03, which leaves a balance of $391.52 due Rankin. Statement of the case. Exceptions were filed to the master's report by both parties. The master disallowed them. They were renewed in the circuit court, and there again disallowed. Those by defendants were as follows: "That the master erred in proceeding until the defendant could be heard in the circuit court to have the decree vacated and expunged from the record; that the master erred in admitting time drafts payable to John Swanwick, because they are not liens or evidences of incumbrance on said land, but were created and brought into existence after the written agreement; because the master erred in admitting time drafts in favor of Barcroft & Co., over the objection of defendant, because they were not liens or incumbrances of any kind on said real estate, but were created after the date of said written agreement; because the master erred in refusing to pass upon the objection of complainant's solicitor to the taking into account the pay for services prior to the year 1876, the defendant being thereby debarred from his right of excepting to the master's ruling if adverse to his interest, and because by his final report he seems to tacitly have sustained and admitted this objection without defendant having an opportunity to except to his said action; because the master erred in finding that Robert Rankin was declared a bankrupt, and that his assignees had sold all claims that Robert Rankin had against these lands for interest, taxes, and $4000 paid Barcroft & Co., on the 27th day of January, 1877; because there was no evidence before the master from which he could find any such facts; because the only matter in the master's record and before the master was the complainant's objection, and no evidence whatever was before said master on which to sustain such finding; that the master erred in finding that John D. Rankin became the purchaser of the claims of Robert Rankin against said trust estate, and assigned the same to Robert Rankin for $150, and in finding that sum, with interest thereon, as the only sum due said Rankin; that there is no evidence before said master on which said finding could Statement of the case. be sustained; that there was no evidence introduced before said master relating to said matter, and because the defendant had a perfect right and legal authority to purchase at said assignee's sale, or from the purchaser at said sale, and as to the price he paid at said sale he occupies the relation of a stranger; because the assignee of said bankrupt never could have any interest in or control over the trust confided by said instruments in Robert Rankin; because the pretended decree under which the master was taking said account gave no direction to said master to make any such distinction, or to take into consideration any such proceedings in bankruptcy, and because the master's action is wholly unauthorized by said pretended decree, or by any evidence before him, as shown by his report of the evidence; because the master finds that prior to January 29, 1877, Rankin paid for taxes on said claims, etc., $11,010.97, and allows him for said sum only $209; because the master erred in omitting the amounts found to have been paid by defendant prior to January, 1877, and in omitting the amount due defendant for his personal services prior to said date; because, as shown by the master's report, there was no evidence to sustain said finding, in whole or in part; that the only evidence that said Rankin was discharged, is the certificate of discharge, showing that he was released from all debt existing prior to November 19, 1873, and that there are no data in any of said testimony on which said master can fix his assumption that January, 1877, was or could be of any importance whatever; that said assignee's sale was not a sale made by defendant Rankin as trustee, and his purchase was not a purchase of the trust property the dealing in which by the trustee is prohibited by public policy; because the master erred in not finding for defendant the amounts of his advances, making a total of $13,035.27, instead of the sum of $1858.55 which has been allowed in the conclusions of said master's findings; because evidence would justify the finding a credit of the sum of $13,035.27, 29-114 ILL. Brief for the Plaintiff in Error. while there is a total absence of evidence to justify the finding of $1858.27." The court decreed that the master's report be approved, and that so much of the lands described in the bill as should be necessary to pay the amounts so found due, be sold by the master in chancery. Upon this decree the defendant Rankin prosecuted a writ of error from the Appellate Court for the Fourth District, and that court, on hearing, affirmed the decree of the circuit court. The present writ of error is prosecuted to reverse that judgment. Mr. J. PERRY JOHNSON, Mr. HENRY E. MILLS, and Mr. A. G. GORDON, for the plaintiff in error: The administrator or executor of Albert W. Senter should have been made a party. Lynch v. Rotan, 39 Ill. 14; Smith v. Rotan, 44 id. 506; Ryan v. Lynch, 68 id. 160; Stephenson v. Mathers, 67 id. 123; Moore v. Munn, 69 id. 591; Alexander v. Hoffman, 70 id. 114; Packwood v. Gridley, 39 id. 388; Hopkins v. Roseclare Lead Co. 72 id. 377; McGraw v. Bayard, 96 id. 147; Gudgel's Admr. v. Ketterman, 108 id. 50; Manufacturing Co. v. Wire Fence Co. 109 id. 71. The writing should, with reasonable certainty, show who the beneficiary is, and must so define his interest that a fraudulent party may not be substituted. The words, "existing incumbrances on said property," even in the light of the testimony, do not show who are the beneficiaries first secured. Ricketson v. Ricketson, 19 Cal. 330; Booth v. Baun, 9 Conn. 286; Gilman v. Moody, 43 N. H. 239; Hunt v. Robinson, 11 Ohio St. 232; Gill v. Torney, 12 id. 38; Bramball v. Flood, 41 Conn. 68; Shaw v. Lord, 12 Mass. 447. The purchaser at an assignee's sale takes such interest as the bankrupt had prior to the proceedings in bankruptcy against him, and stands on the same footing with a purchaser at an execution sale. Steadman v. Taylor, 17 Bank. 284; Carr v. Fearington, 63 N. C. 560; Anderson v. Miller, 7 S. & M. 590. Brief for the Defendants in Error. The purchaser at a bankrupt sale takes no higher right than the bankrupt himself had. Baker v. Vining, 30 Me. 121. Rankin had the right to purchase at the sale made by his assignee. Phelps v. McDonald, 2 McArthur, 380; Arnold v. Leonard, 12 S. & M. 258. Personal assets do not vest immediately in the heir, but in the executor or administrator. 2 Blackstone's Com. 420, note 38; Williams on Executors, note 527; Story on Eq. Pl. sec. 170. The manner in which the interlocutory decree was prepared is obnoxious to good chancery practice. Sterens v. Coffee, 39 Ill. 148; Schneider v. Siebert, 50 id. 285. Mr. WILLIAM HARTZELL, and Mr. JAMES J. MORRISON, for the defendants in error: It is competent for a party, after the legal title to real estate has been vested in him, to make a written declaration that he holds such title in trust for another. Parol evidence is competent to show whose name should have been inserted in a blank in a declaration of trust, as cestui que trust. Fast v. McPherson, 90 Ill. 497. The want of proper parties can not be taken advantage of for the first time in the Supreme Court, unless it appears that parties are omitted whose rights are so connected with the subject matter of the suit that a final decision thereof can not be made without materially affecting their interests. Conwell v. Watkins, 71 Ill. 488. A court of equity, independent of any agreement, would consider money advanced by a trustee, to purchase in an outstanding title, as an advance for the benefit of his cestui que trust, and not for his own use, giving him a lien on the property until he has reimbursed the advancement. King v. Cushman, 41 Ill. 31. Trustees and others sustaining a fiduciary and confidential relation can not deal on their own account with the thing or |