37 Ill. 181 | Ill. | 1865
delivered the opinion of the court:
This v^as a suit in chancery to enforce a vendor’s lien, on the following state of facts : The defendant in error sold certain real estate to Kate C. A. A. Cowl, one of the plaintiffs in error, for eight hundred dollars, she being at the timé of the purchase, the wife of her co-plaintiff in error, W. Augustus Cowl, who then acted as her agent in the purchase of the property. Kate paid to the complainant, by her agent, five hundred dollars of the purchase money, it being her sole and separate property, and complainant accepted, for the balance due, the note of W. Augustus Cowl, for three hundred dollars.
On these facts, had the complainant a lien on the land for this balance of the purchase money ?
When the deed of the land was made and delivered to Kate Cowl, the land became her property, the title to which was vested in her, absolutely.
The act of February 12th, 1861, provides, that all the property, both real and personal, belonging to any married woman as her sole and separate property, or which any woman hereafter married, owns at the time of her marriage, or which any married woman acquires, during coverture, in good faith, from any person other than her husband, by descent, devise or otherwise, together with all the rents, etc., shall, notwithstanding her marriage, be and remain, during coverture, her sole and separate property, under her sole control, and be held, owned,, possessed and enjoyed by her the same as though she was sole and unmarried; and shall not be subject to the disposal, control, or interference, of her husband, and shall be exempt from execution or attachment for the debts of her husband. (Sess. laws 1861, page 143.)
By the delivery of the deed, and possession of the land, to Kate Cowl, and receiving her husband’s note for the balance of the purchase money, the appellee passed away to her, his title to the land, and it became the wife’s absolute property, as much so, as if it had been devised to her. It did not come ■to her through her husband, and no court could compel her to surrender her title to it, without her consent. Before this statute this court held in Spurck and wife v. Crook et al., 19 Ill., 415, that by the common law, a wife could not be compelled to convey her land, or release her dower, on any contract, she alone, or in conjunction with her husband, may have made. As Anna Spurek, in that case, had an equitable title, we held she could not be compelled, by a decree of court,' to part with it, against her consent.
And on the same principle, the case of Moulson v. Hurd, 20 Ib., 137, was decided. The payment of five hundred dollars of her own money, as part of the purchase price of the land gave her, at least, an equitable title in it, of which the court could not divest her.
On the other question, had the complainant a vendor’s lien on this land, we held in the case of Richards v. Leaming et al., 27 Ib., 432, that this lien.arises from principles of equity alone, and it is created by courts of equity, independent of any express contract, upon' the mere supposition of the intention of the parties, and whenever from any circumstance, the court can infer that the vendor did not rely upon the lien for his security, the courts have treated it as waived. Therefore, taking any security, either personal or material, or the neglect to enforce the lien for a considerable time, though short of the time prescribed by the statute of limitations, has been considered as. a waiver of the lien. And inr Conover v. Warren, 1 Gilm., 498, this court held, that the lien, was discharged by taking any independent security, such as a deposit of stock, a pledge of goods, a mortgage on real or personal estate, or the responsibility of a third person.
Here, the note of the husband was taken, a third person in the sight of the law governing this case. Taking this note, is evidence the vendor did not look to the land, as a security for his money. These liens are secret, unknown to the world, and often productive of much injustice, and ought not to be extended beyond the requirements of the settled principles of equity law. Richards v. Leaming et al., Supra, 433. These authorities show, conclusively, that no lien existed on this land. Complainant waives his lien by accepting the note of W. Augustus Cowl, who, by the spirit and intention of the act of February, 1861, above quoted, was, to all purposes, so far as the control of this property of his wife is concerned, a separate and-distinct person, a third party, as much so, as if he were not her husband.
The decree of the court below allowing the lien is reversed, and the cause remanded, with leave to amend the pleadings.
Decree reversed. v
