50 Ill. 143 | Ill. | 1869
delivered the opinion of the Court:
Several points are made by appellants on this record, the most imnortant of which will be noticed.
They make the point, first, that the commissioners appointed to assign dower, to the widow, Martha Jeffries, should have been confined to the homestead, setting that apart to her as her dower.
This position, as we understand the statute in relation to dower and homestead, and the nature of these interests, is not tenable.
These interests are separate, distinct and independent of each other, and have their foundation in different principles. Homestead is a mere right of occupancy of certain premises under certain circumstances, while the other does not depend upon occupancy, but upon the marriage, seizin of the husband during coverture, and his death, and extends to all his real estate. Of neither can the wife be deprived without her consent expressed in the mode prescribed in the statute, except in the single case, where a creditor on execution has extinguished the right of homestead by the payment of one thousand dollars to the husband. Of dower, a widow cannot be deprived except by her own act, or by the operation of the star tute of limitations. Owen v. Peacock, 38 Ill. 33. By our dower act, a widow is allowed to retain the full possession of the dwelling house in which her husband most usually dwelt next before his death, together with the out-houses and plantation belonging to it, free from molestation and rent, until her dower is assigned. By section 17 of the same act, it is made the duty of the heirs at law, or other persons having the next estate of freehold or inheritance in any lands of which the widow is entitled to dower, to lay off and assign such dower, as soon as practicable after the death of the husband, and by the 18th section, if this be not done in one month after the decease of the husband, then the widow may sue for and recover the same. This statute embraces all the real estate of the husband, while the homestead act embraces only the lot of ground, and the buildings thereon, occupied as a residence, to the value of one thousand dollars. By both statutes, the widow can occupy the homestead under certain conditions, but her right to dower does not depend upon occupancy.
The lot in question was sold by the administrator of Jeffries, to pay debts due by him. That his widow had a dower right in it, cannot be denied, and Peyton became the purchaser, subject to that right, and so did the other defendants claiming under him. Whether or not the widow had a homestead right in other premises, is a matter in which the defendants could have no interest. The question is, had the widow a z-ight of dower in this particular lot. If she had, and that is not disputed, it must be set off to hei\ There would be no justice in confining this right to other premises in which she might have a homestead, as that would be casting a burden upon the mhezitance which it ought not wholly to bear. The acts of #1.865,"'to which reference is made,
The next point made by appellants is, that the court allowed the widow too large a portion of the rent of lot 53, and ei-red in allowing her interest thereon, and in exempting her from the payment of one-third of the necessary repairs and taxes.
In the view we have before taken of cases of this charactei-, the decree of the court was erroneous in all these particulars. It is the doctrine of this court, that a widow cannot claim rents which had accrued prior to -her demand for dower, as and for damages.
The only demand she did -make was by the commencement of this suit in October, 1865, and this was a sufficient demand. Bonner et al. v. Peterson 44 Ill. 253. Whatever -rents may have accrued since that time, she would have an interest in, but as ■the bzzilding was destroyed by fire in the previous year, she can only claim one-third of the yearly value of the rent of the ground, to be established by testimony. Atkins v. Merrill, 39 Ill. 62; Bonner v. Peterson, supra. From this should be deducted one-third of the annual taxes assessed upon the lot. It is the general, if not the universal rule, that a tenant for life is liable for all the taxes assessed upon lands subject to such tenancy. Prettyman v. Walston, 34 Ill. 175, and there is nothing peculiar to a tenancy in dower which distinguishes it, with respect to charges of this character, from other estates of freehold for life. Standing in the place of her husband, the widow must necessarily be subjected to the charges, duties and services to which the estate may be liable, in proportion, certainly, to her interest therein. White v. Mayor of Nashville, 2 Swan, 364; 2 Scribner on Dower, 733.
The next point made is, that a gross sum was dec: paid by all the appellants jointly. ;
It is alleged in the bill, that these appellants, AjMn,* Varfcmeter, Mesbit and Skidmore, purchased the lot in que|tipn<-rup' March, 1865, of Peyton, and claim to own the samé:. In" fee," and with Peyton are made defendants to the bill and required' to answer. They filed a joint and several answer, in which their several interests in the lot are set out, by which it appears the entire lot was sold in two parcels, by Peyton to the other defendants, and consequently their interests were several, and not joint. A decree, therefore, against them jointly, was erroneous. They should have been required to pay such yearly dower pro rata, according to their respective interests in the premises. Davenport v. Haynie, 30 Ill. 59.
The remaining point is, that the master in chancery was directed to sell the premises, if the money allowed by the decree was not paid in thirty days, upon giving twenty days’ notice.
In cases where, as in this, there is no right to redeem premises sold under a decree or judgment of the court, this court has uniformly held, that it was error to prescribe a less time than the life-time of an execution, which is ninety days. Sink v. Architectural Iron Works, 24 ib. 553; Stevenson v. Coggswell, 28 ib. 462.
For these errors, apparent upon the record, the decree is reversed and the cause remanded for further proceedings, consistent with this opinion.
Decree reversed.
Gross’ Slat. 2d ed. p. 220, §§ 37, 38.
See also, James et al. v .Hambleton et al. 42 Ill. 308; Cronan v. Frizell, Admr., ib. 319.
