tue of the statutory right hereinbefore referred to, and not adverse to the title of the plaintiffs in error but entirely consistent and in harmony with such title. (Riggs v. Girard, 133 Ill. 619.) Until dower was assigned the widow was entitled to the exclusive possession of the premises, the right to use them and apply the profits exclusively to her use, or to lease them and receive the rents accruing under the lease. She could have maintained ejectment against the heirs in the event they had obtained possession without her consent, and her right to possession was exclusive until her dower was assigned. (Riggs v. Girard, supra.) So the evidence of use and leasing is not, of itself, sufficient to establish that her possession was adverse. Inasmuch as she received all the rents and profits produced by the land, it was her duty, under the law, to pay the taxes and special assessments levied against the real estate, and the payment by her of taxes and assessments is not inconsistent with the contention of the plaintiffs in error. (Riggs v. Girard, supra.) Nor was the leasing of the real estate to one of the plaintiffs in error inconsistent with the position here taken by them. Until dower was assigned the widow had absolute control of the premises and the right to lease the same. and collect the rents thereon. The evidence as to improvements made by the widow while in possession shows that she expended but little, and there is proof tending to show that the improvements actually deteriorated during her occupancy. We are of the opinion that this evidence is entitled to but slight weight in arriving at a conclusion in this case. The declarations as to claim of ownership made by Nancy Lambert were made less than twenty years prior to her death. The deeding of the right of way for the ditch and the mortgaging of the premises for the purpose of raising the money to pay the drainage assessment are not conclusive evidence as to the assertion of ownership of the whole on the part of Nancy Lambert. She was the owner of one-half of the real estate and entitled to the

use of all of it until dower was assigned. The evidence discloses the construction of the ditch by the drainage district benefited the land considerably, and proportionately was of as much benefit to plaintiffs in error as to Nancy Lambert, and therefore the deeding of the right of way and the executing of the mortgage for raising the money with which to pay the assessment made by the drainage district for the construction of the ditch were not inconsistent with the interest of plaintiffs in error in the real estate. The fact that the farm was known as the "Nancy Lambert farm" goes only to the element of the openness and notoriety of her possession. There is no doubt, under the evidence, that she occupied the farm from her husband's death until her death, and if the other elements of adverse possession were as clearly established, the bar to an assertion by the owners of the legal title of their rights in the real estate would be complete.

As we have heretofore stated, there are five elements that must be clearly established by the evidence before the decree in this case can be sustained, and the proof fails to establish that Nancy Lambert's possession in the beginning was hostile or adverse to the true owners and does not overcome the presumptions in their favor, and is not sufficient to justify the decree entered in this case. The evidence fails to establish that the possession of Nancy Lambert was in the beginning adverse to the plaintiffs in error, and her possession was consistent and in harmony with their rights in the premises.

Much reliance is placed by the defendant in error, Ann Hemler, upon the case of Kotz v. Belz, 178 Ill. 434, as an authority in point and sustaining her contention in this case. The cases are not alike upon the facts and are clearly distinguishable. In the Kotz case one Weber died, leaving a widow and no children him surviving. The evidence shows that he died testate; that his will was admitted to probate but was burned shortly thereafter in, the Chicago

fire, and upon the trial its provisions were not clearly proven. However, the evidence showed that Weber owned real estate which was occupied by him and his wife, at the time of his death, in part as a home, and that he rented a part thereof as a saloon and another portion was occupied by a tenant as a residence. The widow at once, upon his death, went into possession of all of this real estate, claiming to be the sole devisee of her husband and by virtue of his will the sole owner thereof. Her declarations, made immediately after the death of Weber, were, that he had given everything to her by his will, and at the time she made these declarations she had taken possession of the premises, was collecting the rents thereon and claiming to own the whole in her own right, as devisee and legatee under her husband's will. The evidence clearly established that she based her right to possession under a claimed title through the will of Weber, and this court expressly found, in view of the foregoing facts, that the contention that, she occupied the premises by virtue of the Widow's Quarantine act was not sustained by the evidence. Her possession was clearly established to be adverse to the heirs. In the case at bar there is no evidence tending to show that the widow remained in possession of the premises under any claim adverse to her co-tenants, and therefore the contrary presumption must obtain,—that is, that her possession was not adverse to but in accordance with the rights of the true owners of the premises, and that she remained in possession by virtue of the statute, which gave her the right to hold said premises until dower was assigned.

The evidence in this case failing to establish the contention of the defendant in error, the decree of the circuit court of McLean county is reversed and the cause remanded to that court, with directions to enter a decree therein consistent with the views herein expressed.

Reversed and remanded.

THE JAMES H. RICE COMPANY, Appellee, vs. Joseph McJOHN et al. (MICHAEL J. AGNEW, Admr., Appellant.) Opinion filed February 16, 1910-Rehearing denied April 6, 1910.

I. CREDITORS' BILLS-when bill is one in aid of execution and not a creditor's bill. A bill by a judgment creditor, the only purpose of which is to set aside an alleged fraudulent conveyance so that execution may be levied, is a bill in aid of an execution, and is not a creditor's bill in a strict sense.

2. SAME-distinction between relief to be granted under bill in aid of execution and a creditor's bill. Under a bill in aid of an execution the only relief which can be granted is to set aside the encumbrance or conveyance alleged to be fraudulent, while under a creditor's bill any equitable estate of defendant may be reached.

3. RECEIVERS when appointment of receiver for the rents and profits is erroneous. Where the only issues raised by a bill in aid of execution are that the deed sought to be set aside is without consideration and that it is fraudulent as to the complainant, it is erroneous for the court to appoint a receiver for the rents and profits of the real estate involved, particularly without any hearing or any showing in support of the motion for such appointment and without any bond by complainant.

4. SAME when defendant is entitled to notice of application for appointment of receiver although in default. Where the appointment of a receiver is merely incidental to the main object of the bill, the defendant, though he is in default, is entitled to notice of the application for such appointment unless the complainant gives the required bond.

5. SAME when rent collected by receiver cannot be applied on complainant's judgment. The doctrine that a court of equity will take no step to save harmless a party detected in a fraudulent transaction to cheat, does not authorize the application, upon the complainant's judgment, of rents and profits collected by a receiver improperly appointed under a bill in aid of the execution, which prayed no relief and made no issue as to such rents and profits but sought only to set aside the deed to the property involved as being in fraud of complainant's rights as a creditor.

6. SAME the complainant should pay costs and expenses if receiver was improperly appointed. Where the appointment of a receiver at the instance of the complainant in a bill in chancery is improper, complainant should be required to pay the costs incurred by such appointment and the fees and expenses of the receiver.

7. JUDGMENTS AND DECREES-extent to which decree pro confesso is conclusive. A decree pro confesso concludes a defendant as to all matters of fact averred in the bill, but he may, on appeal, contest the sufficiency of the bill or assign as error that its averments do not justify the decree.

8. SAME a decree must correspond with the averments of the bill. In a chancery case no facts are properly in issue unless alleged in the bill, and no relief can be granted by the decree as to matters not alleged.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. FARLIN Q. BALL, Judge, presiding.

On October 6, 1902, the James H. Rice Company, a corporation, filed its bill of complaint in the superior court of Cook county against Joseph McJohn and Edward McJohn, charging that on September 17, 1902, complainant recovered a judgment against said Joseph McJohn in the circuit court of Cook county for $1801.60; that prior to the rendition of the said judgment Joseph McJohn was the owner of certain real estate in Cook county, which was improved by a three-story brick building; that on September 20, 1902, an execution was issued upon said judgment and delivered to the sheriff of said county; that on August 7, 1902, prior to the rendition of the judgment but after the indebtedness upon which it was rendered had accrued, Joseph McJohn conveyed the said real estate to Edward McJohn for a pretended consideration of one dollar; that said conveyance was a mere sham and was made with intent to defraud complainant and other creditors of Joseph McJohn out of their just demands; that no consideration was paid by Edward McJohn therefor, and that the premises are now held by Edward McJohn in trust for Joseph McJohn and for the purpose of preventing a levy and sale of the premises under said execution; that Joseph McJohn has no personal or real estate liable to levy