102 Ill. 446 | Ill. | 1882
delivered the opinion of the Court:
In Washburn on Beal Estate it is correctly said, (vol. 1, p. 184,) that “as the mortgagor, * * * if he discharge the mortgage, is not allowed to call upon another for contribution, having only paid his own debt, so, if the mortgaged estate is bought by a stranger, under such circumstances as to show that he only paid for the excess of its value over the mortgage, or so that one part of the estate satisfies the whole, the widow of the mortgagor will be let in to claim dower at law if 'such purchaser shall obtain discharge of the mortgage. ” This rule, however, applies only where “the mortgaged estate is bought by a stranger, ” by a purchase from the husband. In such case, the husband having by his contract of sale, made during coverture, provided for the discharge of the mortgage, the case in this regard stands as though he had himself paid off the mortgage during coverture. In case the husband, before marriage, had mortgaged his land, the wife, upon marriage, takes an inchoate right to dower only in the excess of the value of the land over the amount of the mortgage. If the husband in his life pays the mortgage, he acquires title to that interest in the land which at the time of marriage was in the mortgagee, and 'the wife’s right to dower attaches to the same as to an interest in land bought by the husband during coverture. But if the mortgage be paid by the heir after the death of the husband, this is equivalent to a purchase by the heir of that interest in the estate which is in the mortgagee, and as the widow takes no dower in estates bought by the' heir, she acquires no right of dower in the new estate so bought by the heir. The right of the heir, however, having been acquired by removing an incumbrance upon an estate in which the heir and the widow each had an interest subordinate to the incumbrance, the widow, in such case, has the right, by a just contribution, to avail herself of the benefit of the purchase by the heir of the adverse title of the mortgagee. And so the same author says, (vol. 1, p. 187,) that “if the mortgagee 'is in possession of the mortgaged premises for condition broken, or the purchaser of the equity of redemption who has redeemed the mortgage, the widow’s remedy for the recovery of her dower is by bill in equity only, as she can not maintain a writ of dower until she has contributed her share of the redemption money. ” And so Kent says, (vol. 4, p. 48,) that “though the wife be dowable only of an equity of redemption when the mortgage was given prior to her marriage, or when she joined her husband in the mortgage, she is, after her husband’s death, if she claims her dower, bound to contribute ratably towards the redemption of the mortgage. ”
A sale by the administrator, under our statute, of the real estate, is equivalent to a sale by the heir and an appropriation of the purchase money to the payment of the debts of the testator, the administrator being made, by statute, in substance the attorney in fact of the heir to make such sale. His power, where the land is mortgaged, is merely to sell the equity of redemption, for that is all that vests in the heir. The purchaser takes the right of the heir, no more, no less—that is, the fee, subject to the mortgage. If the purchaser redeems from the mortgage, he holds as the heir would have held had he paid off the mortgage. The widow can have dower only by paying her ratable share of the money necessary to discharge the mortgage. The debt paid in discharging the mortgage, is not the debt of the heir. In paying that debt he is not “paying his own debt,"” as would be the case were the debt paid by the mortgagor in person. The case of Bank of Commerce v. Owens, 31 Md. 320, is directly in point on this question.
It is claimed that the administrator’s sale was made on terms that the purchasers undertook to discharge not only the mortgages, but also the dower and homestead rights of the widow. The proofs are not satisfactory in support of the allegation. This, however, is not deemed material, for the administrator had no lawful authority to make any such terms. His agency arose from the statute. The bounds of his powers were therefore known to all. • He could sell just what the law authorized him to sell,—that was, the rights of the heir,—no more, no less. Had he in fact made such terms, his acts would have been inoperative. He had no power to divert from the use of the creditors a part of the value of the interest of the heir, and apply it to the use of the widow.
The reasoning applicable to the dower interest of the widow, is equally applicable to her claim of an estate of homestead. In the mortgages made by the husband before his marriage with appellee, he released his homestead right. In the mortgage made during coverture, her right of dower and his homestead right were duly relinquished by both husband and wife, as provided by statute. At the death of the mortgagor the rights of the mortgagees were all superior to the homestead right and the dower right. After the death of the husband the widow held both her right of dower and her estate of homestead, subject to the mortgagees, and they are still subject to the same rights in the hands of the purchasers at the administrator’s sale, who have paid the mortgage debts.
The decree of the circuit court granting to the widow, unconditionally, dower and an estate of homestead, was therefore erroneous in not subjecting her rights each to the condition that she should, as to each right, contribute a ratable share, in regard to such right, of the redemption money paid by appellants for the discharge of the mortgages, before she should be permitted to avail herself of that right.
The decree is therefore reversed, and the cause remanded for other proceedings not incompatible to the views here expressed.
Decree reversed.