108 Ill. 613 | Ill. | 1884
delivered the opinion of the Court:
This was a bill for the assignment of dower by appellant, against appellee. On the hearing the circuit court decreed denying the prayer of the bill, and that the bill be dismissed, and the correctness of this ruling is the question presented for our consideration upon this appeal.
Appellant, as the wife of Nathan P. Herrington, was entitled to an inchoate right of dower' in what, in fact, was a •little less than the undivided one-ninth of a tract of land in the city of Chicago, hut it was assumed to he, and for the purposes of the question before us it may he regarded as, the undivided one-ninth of the tract. Nathan P. Herrington executed a deed of the undivided half of that ninth to Luther Dearborn. In this appellant’s right of dower was not relinquished, although she joined in the execution of the deed,— the certificate of acknowledgment as to her being insufficient. Subsequently, Nathan P. Herrington conveyed the remaining undivided half of that ninth to one Moore, and appellant joined in the execution of that deed, and relinquished her right of dower in due form of law. Afterwards, the owners of the tract platted it, and made it an addition to the city of 'Chicago, under the name of “Herrington’s addition;” and still later, there was a decree for partition by the Superior Court of Cook county, between these owners, setting apart the several lots into which they had subdivided the tract, as the court found the respective parties entitled thereto. Neither Nathan P. Herrington nor appellant was a party to that decree. Nathan P. Herrington died intestate since the decree for partition was rendered, and the present bill totally ignores that partition, and seeks dower in lots that were not therein set apart to Dearborn.
The only question is, whether appellant is concluded by the decree of partition, and limited to dower in the lots set apart to Dearborn. We think clearly she is not. It may be that there is that unity in the character of the interests of the husband and wife that any act done hy the husband, or decree rendered against him, in good faith severing his interest from that of other co-tenants, and localizing it as an interest in severalty, is binding upon the wife; but if so, this must be upon the principle that whatever is for the benefit of his interest is for the benefit of her interest, and that whatever is necessary for the protection or defence of the one is necessary for the protection or defence of the other. But it is obvious this can have no application where their interests are severed by a conveyance of the husband’s interest to a stranger. That destroys the unity, and the interests are then, to some extent, hostile and antagonistic. The husband and wife, theoretically, are never rivals in interest, while the stranger owning the fee, and the wife having a dower interest, are, theoretically, to some extent, although it may be but slight, always so. Of course we do not mean the estates are inconsistent and repugnant, but that, as to the extent and duration of the dower estate, the interests of the parties are not identical. If appellee and the other parties to the partition desired to conclude appellant by the decree, they should have made her a party. It is true that Moore’s interest ought not to be subject to appellant’s claim of dower, but he ought to have known that appellant had an initiate right of dower in the undivided one-half of one-ninth of the tract, and if he desired that should be localized as to particular lots, he should have seen that she was made a party to the decree. The sole misfortune is in attempting to partition the property without paying any attention to appellant’s interests. The decree does not bind her, and she is, consequently, entitled to have dower assigned just as if it had never been rendered. Rank v. Hanna, 6 Ind. 20, .is an authority sustaining the present ruling.
What may be the effect of the partition upon, the rights of the respective defendants as between themselves, or what part of the property should be taken to answer the rights of complainant, we have not regarded as falling within the scope of our present inquiry, and consequently we do not now decide, it being, in our opinion, sufficient, for the present, that we hold that the extent of appellant’s interests in the property is not affected by the decree for partition.
The decree is reversed, and the cause remanded for further proceedings consistent with this opinion.
Decree reversed.
