41 Ill. 290 | Ill. | 1866
delivered the opinion of the Court:
It is insisted, that Green conveyed the land in controversy to William Bailey, Jr., to secure the purchase-money loaned by him to his father, for the purpose of making payment to Green, of whom he had purchased. The title in fee having vested in William Bailey, Jr., his wife, prima facie, became entitled to dower in the premises, and, at his death, her inchoate right became a vested interest, which she could enforce at law, but which might be defeated in equity by showing that her husband, in his life-time, only held the land in trust for his father. When the latter, or his heirs, paid the money to her, to secure the payment of which the land had been conveyed to her husband, her receipt of the money and conveyance to William Bailey, Sr., if made before her last marriage, divested her right of dower in the premises, if he was the owner in equity.
Until, however, the trust was established, she would be entitled to dower in the land. When she married Low, he became entitled to an interest in her dower in the land during their joint lives. If she still held dower, he became, by the marriage, vested with the right to receive rents and profits of her dower after it should be assigned to her. • And, for the purpose of procuring an allotment, he could institute the necessary legal proceedings. This, then, vested him with such an interest, and rendered him a necessary party to this bill. He had a right to be heard before his apparent right was divested.
Her separate deed, after her marriage with Low, did not transfer her title to William Bailey, Sr. Of this conveyance there seems to be no evidence in the record, but the court below finds, in the decree, that Lydia Low had so conveyed the premises. After her marriage, a deed from her without her husband’s uniting in its execution could convey no title. It is true, that, in another part of the decree, there is a recital that Lydia Bailey had quitclaimed the land to William Bailey, Sr. Which of these recitals is true, we are unable to determine in the absence of all the evidence. If the latter is true, then the release of her interest in the land would be good, if the elder Bailey was the equitable owner in fee; otherwise it would not affect her interest, as she could not convey her dower before assignment. Blain v. Harrison, 11 Ill. 384. This, therefore, made Low a necessary party, as he had the right to contest the right of William Bailey, Sr., to the land. If it appeared that William, Jr., only held the land as a security for money advanced to William, Sr., on its payment to him, or to his legal representative after his death, the object of the trust then ceased, and William Bailey, Sr., or his heirs or grantees, would, in equity, be entitled to a reconveyance. On the death of William, Jr., the fee simple held by him vested in his heirs, and the conveyance by his widow, whether before or after her marriage with Low, did not affect their title.
For the want of necessary parties, the decree of the court below is reversed and the cause remanded, with leave to amend, by making new parties.
Decree reversed.
