Gardner v. Maroney

Citation1880 WL 10067,95 Ill. 552
PartiesHENRY W. GARDNERv.JAMES MARONEY.
Decision Date16 June 1880
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding.

Mr. ADLAI T. EWING, for the appellant:

1. The defendant's title must fail, because the proceedings had by the county court of Cook county appointing Ira J. Nicholes conservator, etc., and the proceedings had by the Superior Court decreeing the sale of the premises in question, are void for want of jurisdiction.

The statute of 1853 authorized the sale of the real estate of lunatics, etc., “for the purpose of paying debts, supporting a family or educating children,” neither of which causes apply to insane married women, married women having no power to contract debts, and not being bound for the support of the family or education of the children.

The rule is inflexible that a feme covert can only convey her real estate by a strict compliance with the statute providing for such alienation. Lindley v. Smith, 46 Ill. 524; Russell v. Ramsey, 35 Id. 370; Hughes v. Lane, 11 Id. 128; Law v. Soulard, 15 Id. 123; Mason v. Brock, 12 Id. 273; Garrett v. Moss, 22 Id. 363; Hogan v. Hogan, 89 Id. 427; Mariner v. Saunders, 5 Gilm. 125.

Does the Married Woman's act of 1861 enlarge the statute enabling femes covert to convey so as to apply to insane married women? Until the law of 1869, the husband was responsible for the debts of the wife contracted before marriage, and became the owner of her personal property when reduced to possession, and entitled to a life estate in her realty, and to the entire proceeds of her time and labor. Martin et al. v. Robson, 65 Ill. 138; Conner v. Berry, 46 Id. 371; McMurtry v. Webster, 48 Id. 123; Hogan v. Hogan, 89 Id. 427.

2. Were the appointment of the conservator and the proceedings in the Superior Court decreeing that the conservator sell the premises res adjudicata, and can the jurisdiction of the court in these proceedings be attacked collaterally?

We understand the rule to be, that you can not, dehors the record, attack the jurisdiction of a court of superior jurisdiction in a collateral proceeding, but if on the face of the record the court did not have jurisdiction, then the judgment of the court is void. Andrews v. Burnhardi, 87 Ill. 365; Donlin v. Hettinger, 57 Id. 348; Osgood v. Blackmore, 59 Id. 261; Barnet v. Wolf, 70 Id. 76; Logan v. Williams, 76 Id. 175; Clark v. Thompson, 47 Id. 25; Young v. Thompson, 14 Id. 380; Goudy v. Hall, 30 Id. 109.

Equity follows the law, but never abrogates or violates its provisions. Rogers v. Higgins, 48 Ill. 211.

Messrs. L. & P. TRUMBULL, for the appellee:

The county court had jurisdiction to appoint the conservator of a married woman in October, 1861. Rev. Stat. 1845, ch. 50; Acts of 1851, p. 96; Guardianship of Eliza Fegan, 45 Cal. 176; Drew's Appeal, 57 N. H. 182; Wing v. Dodge, 80 Ill. 564.

The Superior Court of Cook County on June 16, 1865, had jurisdiction to order the sale of the real estate of Mrs. Burgen for the support of herself and family. 1 Gross' Stat. 333.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was an action of ejectment, by appellant against appellee, to recover the possession of certain premises in Cook county. The parties seem to claim title from a common source--one W. T. S. Lavinia. Appellant claims by virtue of a conveyance from Sophia Adele Baxtram, only child and heir at law of Medora J. Burgen, who was the only child and heir at law of said W. T. S. Lavinia. Appellee claims through several mesne conveyances, under a deed made by one Ira J. Nicholes, as conservator of the said Medora T. Burgen, pursuant to a decree of the Superior Court of Cook County and a sale thereunder.

Nicholes was appointed conservator of Medora Burgen by an order of the county court of Cook county on the 11th of October, 1861, she having been, by an order of the same court, made on the 24th of September, 1861, found to be a lunatic. At the time of this appointment she had a husband living--Edward Burgen, who survived her. On the 16th of June, 1865, Nicholes, as such conservator, filed his petition in the office of the clerk of the Superior Court of Cook County, against Edward Burgen and Sophia Burgen, alleging therein that, on the 24th of September, 1861, Medora T. Burgen was, by the county court of Cook county, found to be a lunatic; that petitioner was, on October 11, 1861, appointed conservator of her estate; that she was the wife of Edward Burgen, and had one child--Sophia Burgen; that said Medora T. Burgen and Sophia Burgen were then residents of Cook county; that said Edward Burgen and Sophia Burgen were the only persons interested in the estate of Medora T. Burgen; that there had come to his hands, since his appointment as conservator, $794.50, and, as such conservator, he had expended in the support of said Medora T. Burgen and family, $804.99; that said Medora T. Burgen was then the owner of certain real estate which was described, and which included the premises in controversy; that he had no means in his hands, as conservator, for the support of said Medora T. Burgen and her family, except by sale of the land aforesaid; and that a sale of said premises was necessary for the purpose of paying debts incurred for the support of the said Medora T. Burgen and family. The prayer was that a sale of said premises might be directed to supply petitioner with means for the support of said Medora T. Burgen and family.

Edward Burgen entered his appearance, and filed an answer setting up the same facts, substantially, as those set up in the petition. Summons was issued and served upon Sophia Burgen, and William McKindley was appointed a guardian ad litem, and, as such, filed answer for her.

The decree found the facts to be as set forth in the petition, and decreed a sale of the premises by the conservator.

The main objection urged against appellee's title is that the proceedings had by the county court of Cook county, appointing Ira J. Nicholes, conservator, etc., and the proceedings had by the Superior Court of Cook County, decreeing the sale of the prem ses in question, are void for want of jurisdiction. And it is argued that the statute of 1845, relating to the “appointment of a conservator of an insane or distracted person, having an estate, real or personal,” and the statute of 1853 relating to “the sale of real estate of lunatics or distracted persons,” which statutes were in force at the time of the pretended appointment of Ira J. Nicholes as conservator of Medora T. Burgen, and at the time of the pretended sale of her real estate, did not apply to an insane married woman, because, at the time these statutes were passed, the common law governing the rights of married women obtained in this State. This quotation is then made from 1 Blackstone's Coms. 441, *442: “By marriage the husband and wife are one person in law, that is, the very being or legal existence of the woman is suspended during the marriage, at least is incorporated and consolidated into that of the husband, under whose wing, protection and cover she performs everything.”

But this was only so at law. Courts of equity, for many purposes, treated the husband and wife as distinct persons, capable (in a limited sense) of contracting with each other, of suing each other, and of having separate estates, debts and interests. 2 Story's Equity Jurisprudence, § 1368; Adams' Eq. (6th Am. ed.), 132, et seq. *44-5.

It was, undoubtedly, as contended by counsel, under the common law, in general terms, the peculiar province of the husband to have the care and management of the wife's property, and the custody of her person; and it was his duty to support her whether sane or insane. But the husband's right to the care and management of the wife's property did not extend to her separate estate. This, whether settled on her through the medium of trustees or otherwise, the husband had no right to intermeddle with. And a court of equity would protect, as a gift to the wife for her separate estate, the husband's right in property belonging to her at the time of her marriage, which he was...

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