| Ill. | Dec 15, 1845
The Opinion of the Court was delivered by
The defendants filed a bill for a partition or sale of real estate, against the plaintiff and others. The plaintiff’s demurrer to the bill was overruled; and that judgment is assigned for error, as is also the decree for a sale of the premises.
The bill traces title from the U. S. to one Joseph Bonham, who entered into possession, fenced and cultivated the premises. The bill then proceeds to state, “that the said Joseph Bonham is reputed to have married Sarah Beer, one of the defendants hereinafter named, the daughter of the sister of him, the said Joseph Bonham, in March, A. D. 1823; that the said marriage, if any, by reason of the consanguinity,- was illegal and void; that the said Sarah, at the time of said reputed marriage, had a child about eight months old; that said Joseph Bonham, about one month after said marriage, died, &m, that he had no. children by the said marriage, and left no legitimate children, who could inherit his estate;” that at the time of his death, he left no father, but a mother, who died some time in the year 1834, leaving no husband or children and grandchildren, except the persons' hereinafter mentioned, as the brothers and sisters, children of brothers and sisters of said Joseph, &c. After setting forth the parties, plaintiffs and defendants," and the interest of each, the bill proceeds to state: “That Susannah Beer, sister of said Joseph, and mother of Sarah, the plaintiff here, had the entire use of the said tract of land, after the death of the said Joseph Bonham, until she died in 1843, and lived upon the same, and cultivated most of the same and received all the avails thereof, with all of her said children, who resided with her; and the said Sarah, her daughter, has occupied and received all the avails of the same ever since. And that the use of the premises, during the last twenty two years, has been worth at least thirty dollars a year.”
If Joseph died without children, or descendants of a child, by the law then in force, the estate went by descent to the next of kin, and leaving only a mother surviving, she would take the whole estate. Laws of 1819, 230, § 21. Such was the fact by the bill, and the parties, therefore, must derive title by descent from Sophia Bonham, the mother of Joseph. It is, therefore, contended that she was never in the seizin, but was disseized by Susannah Beer, who remained in possession until her death, when the premises descended to her daughter, Sarah, the plaintiff in error. By which disseizin and descent it is contended the right of entry of Sophia Bonham’s heirs is tolled, and they are put to their action to recover the possession, if not barred. If the premises were true, the corollary would follow. But disseizins are not favored in law, and are not to be raised by construction. We do not regard the facts stated in the bill as showing a case of disseizin. The legal owner may sometimes treat the entry of a trespasser as a disseizin, or as lawful, at his election, and so proceed as will be most advantageous to himself. But this election does not belong to the trespasser. The view we take of this case, however, renders it unnecessary to décide further upon this point.
We regard the allegations of the bill as setting forth a marriage in fact between Joseph and Sarah, the plaintiff. The law of 1819, 26, § 1, provides that males of the age of seventeen, and females of the age of fourteen, may be joined in marriage, if “not prohibited by the laws of God,” Whether the “laws of God” mean the Levitical degrees, in this respect, I will not undertake to determine. But this marriage was certainly within the Levitical degrees; yet it is not, therefore, void, but only voidable. 1 Black. Com. 434; 2 Kent’s Com. 94, 95; 4 Bac. Abr. 554.
They are esteemed valid for all civil purposes, until sentence of separation, and which must be made in the lifetime of the parties, for the Courts will not annul the marriage after the death of either party, by which the issue would be bastardized. See same authorities, and also Com. Dig. 216 to 219, C. 1 to C. 7, inclusive.
The marriage not being annulled by sentence of separation during the lifetime of the husband, it is made good for all civil purposes, and the wife is entitled to dower. 1 Black. Com. 434, note 3, citing Elliott v. Gurr, 2 Phil. Ecc. C. 16; 1 Moore, 225-8; Cro. Car. 352; 1 Roper 332-3.
The statute has saved the right of dower on lands descending. Laws of 1819, 230, § 21. And has also provided a remedy for its assignment, if not done within a month after demand made. Ib. 12, § 1. But she has been allowed to remain in possession, living with her mother, as shown by the bill, upon the premises, and whom, we should regard as being seized instead of the mother being possessed. Thus having the possession of the whole estate, she might well neglect to demand an assignment. This hill seeks a sale of the whole premises without an assignment, and so it is decreed. We are, therefore, of opinion that the decree is erroneous, and must be re versed with costs, and the cause remanded for such further proceedings, as to law and equity may appertain.
Decree reversed.