105 Ill. 342 | Ill. | 1883
delivered the opinion of the Court:
There was a palpable clerical error in the decree of the county court of the sale of the lands, in describing the twenty-acre tract as being in range 8, instead of range Y; but we think the circuit court did right in declining to correct the decree in that respect. The appropriate mode for the correction of error in a decree, is by appeal or writ of error, or upon motion or bill of review in the same court which pronounced the decree. We are referred to no authority to justify the correction of the alleged error in the decree of the county court, which is here asked, and where there is but mere error, as in this ease, we are aware of no precedent for the exercise of the power, upon original bill, by one court to correct errors in the judgment of another court,—and we take the rule to be the same whatever the character of the error, whether clerical or otherwise.
In the argument the claim of homestead is not insisted upon, it being conceded that the homestead right in the premises has been lost by abandonment.
In respect to the dower right, we think there was error in the decree in allowing the subrogation it did to the rights of the mortgagee, and decreeing foreclosure of the mortgage for the sole benefit of Garst. Upon the death of Franklin, the mortgagor, it was an equity of redemption which descended to his heirs. His widow was dowable of this equity of redemption. As she joined her husband in the mortgage, in claiming dower she would be bound to contribute ratably toward the redemption of the mortgage. (4 Kent’s Com. 48.) But by the decree rendered, in order to the protection of her interest she will have to pay the whole mortgage debt. As between themselves,—the heirs and.widow,—in redeeming, it would be the duty of each to contribute a ratable proportion of the redemption money, according to the value of their respective interests. The heirs, by paying off the mortgage debt, should not be permitted thereby to impose the whole burden of redemption from the mortgage upon the widow, in order for her to avail herself of her dower right, by compelling her, as under this decree, to refund to them the whole payment made. It is only her proportional part which she should be required to pay. Swaine v. Perine, 5 Johns. Ch. 482; Russell v. Austin, 1 Paige, 192; Woods v. Wallace, 10 Foster, 384; Hartshorne v. Hartshorne, 1 Green’s Ch. 349; Selb v. Montague, 102 Ill. 446; Montague v. Selb, 106 id. 49.
By the discharge of the mortgage the heirs would have acquired an equitable lien upon the estate, which they might hold against the widow till she contributed her proportion of the charge, according to the value of her interest. (1 Washburn on Real Prop. (2d ed.) 186.) This, we consider, was the principle applying to the facts of this case, and not the right of subrogation, which was given by the decree. Garst, the purchaser at the administrator’s sale, took but the interest of the decedent mortgagor in the lands, and occupies the same position in this respect as the heirs. See Selb v. Montague, 102 Ill. 446.
It is contended that the widow is estopped from claiming dower in this case. There is no doubt that it was the understanding of both Garst and the administrator, at the time of the administrator’s sale, that the lands were sold free from every claim except the mortgage, and free from the claim of dower. Such understanding might be derived from the statements made by the administrator at the sale. But the widow was not present at the sale. Any statements made by the administrator would not affect her unless she authorized the making of them. He could not sell any interest of the widow without authority from her. There is no sufficient evidence of any such authority, or of authority to make the statements the administrator did. We do not find any element of estoppel in the case.
It is claimed that Garst should be charged with the rents and profits of the land since he took possession. This might so be on the theory of the decree that Garst stood in the place of the mortgagee, and was entitled to have a foreclosure of the mortgage for his own benefit. But such was not the condition. Garst had paid off and extinguished the mortgage, and he went into possession as full owner, subject only to dower, and as respects the right of dower would be chargeable with nothing, as the heirs themselves would not have been, until, at least, there had been a demand made for the assignment of dower, the statute giving damages from the time of the demand of and refusal to assign dower. Rev. Stat. 1874, p. 428, sec. 41.
The cross-bill for dower should not have been dismissed. The widow’s ratable share of the redemption money should have been ascertained, a day given for its payment, and on failure thereof the cross-bill should have been dismissed, but on making the payment dower should have been assigned.
The decree must be reversed, and the cause remanded for further proceedings in conformity with this opinion.
Decree reversed.
