| Ill. | Apr 15, 1858
This was a petition for assignment of dower by plaintiff against defendants, commenced in the Cook county Court of Common Pleas, on the 23rd December, 1855. The dower is claimed in blocks 105 and 108 in school section addition to the city of Chicago. It was admitted on the trial below, on the agreed facts, that the petitioner is the widow of Thomas J. Y. Owen, deceased, and that they were married in 1823, and lived together as husband and wife until the 14th of October, 1835, when the said Owen departed this life; that he, in October, 1832, at a sale made by the commissioner of school lands, purchased the said premises, received a certificate of purchase, paid one-fourth of the purchase money, and agreed to pay the balance in one, two and three years, in equal installments; and by the certificate of purchase was entitled to a patent for the same, on payment of the purchase money; that he paid the installments as they fell due, the last in October, 1835 ; that a patent issued in his name for the premises, on the 7th day of December, 1835; that, on the 21st day of May, 1835, he, for the consideration of $4,600, conveyed the land to Elijah K. Hubbard, in trust for Nevins, Townsend & Co., 0. F. Moulton, H. L. DeOoven and Elijah K. Hubbard, with covenants of general warranty, which was acknowledged on the 21st of May, 1835, and recorded on the 18th day of June, 1835, in Cook county, Illinois; that the premises were subsequently conveyed to Russell H. Nevins, and were, on the 29th day of April, 1848, conveyed to defendant, George S. Robbins; that the premises were vacant and unoccupied from the 23rd of October, 1840, till 1853, when the same became occupied by the tenants of the defendant, and have been so .occupied ever since; that petitioner had not asserted her right of dower in the premises since the death of her husband, by demand or suit, until she filed this petition, nor had she exercised any acts of ownership of the premises, by taking possession, paying taxes, or in any other manner. It was subsequently admitted, that Nevins had paid the taxes for seven successive years prior to filing the petition, and that defendant paid all taxes legally assessed on the premises seven successive years immediately prior to the commencement of this suit.
The deed of conveyance executed by Owen and petitioner, on the 21st day of May, 1835, to Elijah K. Hubbard, was<,acknowledged before R. E. Heacock, and the acknowledgment is as follows:
STATE OB ILLINOIS, \
cook county : ) ' This day came before me, Thomas J. V. Owen
and Emily, his wife, both to me personally known to he the real persons who executed the within instrument of writing, and acknowledged the within to be their act and deed, for the purposes contained; and the said............... being by me examined separate and apart from her husband, acknowledged that she executed the same of her own free will, without the coercion of her husband.
In testimony whereof, I have hereunto set my hand and seal, this 21st day of May, eighteen hundred and thirty-five.
E. E. HEACOCE, J. P. [seal.]
On the hearing, the court dismissed the petition and rendered a decree against petitioner for costs. From which she appeals to this court.
The acknowledgment of the deed from Owen and wife to Hubbard, entirely fails to comply with the statute regulating the relinquishment of the wife’s right to dower. This certificate nowhere states that she was made acquainted with the contents of the deed, nor does she acknowledge that she relinquishes her right of dower; both of these should appear in the certificate of acknowledgment. This, then, being the case, any right the petitioner had in the premises was not affected by that acknowledgment. It will be proper to inquire, whether her husband, at the time of his death, had an estate in which petitioner was entitled to dower. In the English courts the rule seems to be pretty uniform, that a widow is not dowable in' an equitable estate. But the rule of the English courts has been departed from by some of the courts of the United States. And our legislature, at an early period, regulated it by enactment. The 49th section of the chapter entitled Wills, Revised Code, 1829, page 207, which was in force when the sale by Owen and petitioner was made, and at the time of his death, provided that “ Equitable estates shall be subject to the widow’s dower, and all real estate, of every description, contracted for by the husband in his lifetime, the title to which may be completed after his death.” It is a question that is not free from difficulty, to determine what kind of an equitable estate the legislature intended to subject to the widow’s dower. It could not be construed •to embrace every kind of equitable estate, such as an equity of redemption of a mortgage given to secure the purchase money, an equitable mortgage, or an equitable lien, that may or may not become a title. This enactment has excluded mere contracts for the purchase of real estate unless the title shall be completed after the husband’s death. But it does embrace a purchase of land by the husband, where the purchase money had been fully paid by the husband, and he was, at the time of his death, in a position to enforce a conveyance by a bill for a specific performance of the agreement. But it would not embrace a contract for the purchase of lands which has been assigned by the husband in his lifetime. Rawton v. Rawton, 1 Hen. & M. 91; Dean v. Mitchel, 4 J. J. Marsh. R. 451; Stephens v. Smith, ib. 66 ; Hamilton v. Smith, 6 J. J. Marsh. R. 582; Lewis v. Moorman, 7 Porter R. 522; 1 Hilliard Real Prop. 145. The contract, until it is executed, is only inchoate, and may be canceled by the parties; or it, like any chose in action, may be assigned so as to pass the equitable interest in the agreement to the assignee. We have been unable to find any case which holds that a widow is 'dowable of land where the husband has assigned a contract for a purchase, although the courts of various States have held she is dowable of an equitable estate. But, in this case, Owen never had any title to this land; he only had a contract for a title, which, at the time it was assigned, might or might not ripen into a title. And when he sold it, he, in equity, passed the contract to Hubbard, and with it all of the rights he held under it. At the time it was sold, the petitioner had no right of dower in the premises, and any subsequent act, in completing the title in Hubbard, could give her no such right. As soon as the last payment was made, it became an equitable title in Hubbard, by virtue of the deed to him, and it would equally have enured to his benefit by an assignment, without the covenant of warranty.
It was urged, that as the defendant, Robbins, derives title from the husband of petitioner, he is estopped from denying that Owen had a title which entitled her to dower. There seems to be some conflict in the adjudged cases ; some holding that it amounts to an estoppel, while others hold it does not have such effect. In New Hampshire and Kentucky, it is held' that the husband’s grantee, in a proceeding by the widow against ¡ him for dower, is not concluded from showing that the husband did not have title. Moore v. Esty, 5 N. H. R. 492; Otis v. Parshley, 10 N. H. R. 403 ; Detheridge v. Woodruff, 3 Mun. R. 244. This would seem to be the true rule, as an estoppel is based on an admission which the party making it shall not be permitted to contradict. When the grantee receives a deed of conveyance, he only impliedly admits that his grantor had a title, and ; he nowhere expressly makes such an admission; and there ‘ seems to be no reason why he should be concluded from showing the truth, when every day’s observation shows that very many purchases are made by way of compromise, and to quiet titles, where neither party believes that any title is conveyed. If the acceptance of a deed is conclusive that the grantee admits title in each preceding grantor, men would hesitate to compromise or buy their peace in cases of disputed titles. In many cases, to receive a conveyance of an outstanding title, as a gratuity, ! would be ruinous, as the less validity a title would have, the : less pains would be taken to get a relinquishment from the wives of the various grantors in the chain of conveyance. It seems i to be more in accordance with the principles of justice and with ; the philosophy of evidence, that the holder of real estate, when 1 sued for dower, should be permitted to show that either an immediate or remote grantor did not have title, and that he holds under a different title, which is paramount. The cases of landlord and tenant, and purchasers in possession under unexecuted contracts, are governed by different principles, and would not fall within this rule. On the whole record in this case we are unable to perceive any error, and the decree of the court below should be affirmed.
Judgment affirmed.