39 Ill. 62 | Ill. | 1865
delivered the opinion of the Court:
We regard the doctrine as settled in this court, that an equitable estate of inheritance, in real estate, is subject to the dower of the wife. If the husband, during the marriage, is seised of an equitable estate in fee, which would on his death descend to his children, it answers the requirements of the statute giving dower, and the widow’s dower can only be defeated by her voluntary act, performed in the mode pointed out in the statute. A sale or transfer by the husband in such a case can no more bar the wife’s dower than in case he were the holder of the legal title. Hor can he, by procuring the holder of the legal title to convey the property to another, defeat the wife in her right of dower. It is the voluntary act of the wife alone under the statute, which produces that effect.
In this case, notwithstanding Davenport conveyed lots one and two, in block one, in square four to Atkin, it is manifest from the evidence that the property belonged to Herrell. He could have compelled a conveyance to himself by a bill in equity against Atkin had he refused to convey on a proper demand. The consideration paid for the lots was in equity the property of Herrell, and with the agreement that Atkin should so convey them. The fact that Herrell was the father-in-law of Atkin no doubt accounts for the fact that the contract was not evidenced by writing, and its proof left to depend upon verbal testimony. Although the evidence is of that character, still it satisfactorily proves that Herrell held an equitable fee simple title in these lots which descended on his death to his heirs, and defendant in error is therefore entitled to dower in them. The question whether Atkin had an equitable lien on the premises does not arise in the case, as, if it did exist, it in no-way affects the widow’s right of dower in the premises.
The farm which Atkin gave Merrell in exchange for other lands became Morrell’s property, and when it was exchanged for the lots they became his, and defendant became entitled to dower in them; any incumbrance which Merrell may have imposed upon them could not affect that right. But as plaintiff in error failed to file a cross-bill in the court below, his rights, if he has any, could not be considered so as to give him affirmative relief. Still the decree was informal in finding that he held the lots merely as a trustee for Merrell; whether he' held them simply in trust or incumbered by the lien which he claimed, was not a question presented by the record. It was, on the pleadings, only necessary for the court to find that Merrell, in his life-time, held such an estate in the lots as gave to the widow a right to dower in them.
We do not see that the court erred in requiring the commissioners to allot and set off to defendant in error, by metes and bounds according to quantity and quality, one-third part of this real estate. The decree of the court below has adopted the language of the twenty-fifth section of the chapter entitled “ Dower,” but has, in addition, directed that they shall assign to her one-third part of the premises. The first section of the chapter declares, that the widow shall be endowed of one-third part of all the lands of which her husband was seised of an estate of inheritance during the marriage, unless she shall have relinquished it in legal form. The twenty-fifth section provides for its allotment, and declares, that it shall be according to quality and quantity. The two sections require what the court decreed should be done, the allotment according to quality and quantity of one-third of the lands,. This is not only not error, but is correct and proper practice. It operates as a guide to the commissioners in the performance of their duties, under the decree.
It is also insisted, that the court erred in decreeing to the widow one-third of the rents which had accrued from the property and been collected. We are aware of no law which gives a widow the rents or profits, or any part of such rents, of the lands in which she has dower, by way of damages. It is true, that the twenty-seventh section of the dower act, authorizes her in all cases to retain full and peaceable possession of the dwelling-house, in which her husband usually dwelt next before his death, together, with the outhouses and plantation thereto belonging, free from molestation or rent until her dower is assigned. It only authorizes her to use and occupy these particular premises, but makes no provision for paying her rents out of other premises, or even of these, although she might, no doubt, if in possession of the dwelling-house and farm, lease them, and collect rents until her dower should be assigned to her.
The twenty-sixth section declares that when the report of the commissioners, assigning dower, shall be approved, the court shall forthwith cause the widow to have possession, by a writ directed to the sheriff for that purpose; and such widow shall, also, be entitled to reasonable damages, to be awarded to her from the time of her demand, and a refusal to assign her dower. This provision only allows damages after a demand is made for the assignment of her dower. At the common law, she was not entitled to damages before a demand, nor could she recover rents and profits until her dower was assigned her. When damages are assessed, the third of the rents of the lands in which she has dower, would, no doubt, form their proper measure, but, until a demand was made, she was entitled to no damages. The commencement of a suit to obtain an assignment of dower may be regarded as a demand, and she may, no doubt, have damages from that time until the assignment is made. In this case, however, the court below seems to have allowed, as damages, a third of the rents received prior to the commencement of this proceeding, and, in this, the court erred.
The court, likewise, erred in rendering a decree for the gross sum of her yearly dower, as a charge upon all of the lands out of which it arises. When the commissioners report that the property is not susceptible of a division, without great injury to the property, the court is required to impanel a jury to inquire of the yearly value of the widow’s dower, therein, whose duty it is to assess the same. And the court is required to render a judgment that there be paid to the widow, on a day therein named, the sum thus assessed, as the yearly value of her dower, and a like sum on the same day in every year thereafter during her natural life. This judgment becomes a lien and charge upon the land in which the widow has dower, and it is but reasonable to suppose that the general assembly intended only to charge each tract with the yearly value of the widowr’s dower therein, and not to charge each tract with the value of her dower in all of the-lands of which she is endowed. When she has established her right of dower in several tracts not susceptible of division, the court should, in the mode prescribed by the statute, ascertain the yearly value of her dower in each separate tract, and render a judgment or decree, charging it with the sum thus found, and require its payment as prescribed. When the decree is rendered for a gross sum, as a charge on all of the lands, without reference to the ownership of the several tracts, or the rights of the heirs, it necessarily works inconvenience, and, no doubt, would produce injustice. It would render the estate of but little value, as no person would be inclined to purchase portions of it thus incumbered. One heir or devisee might pay his proportion, and yet not release his share of the land from the remaining burden, and still leave it liable to sale for the delinquency of others. Such could not have been the design of the general assembly.
The decree of the court below must be reversed, and the cause remanded.
Decree reversed.
