Botsford v. Wilson

• Decision Date: 30 September 1874
• Citation: 75 Ill. 132,1874 WL 9203
• Parties: JABEZ K. BOTSFORDv.ANNA L. WILSON et al.
• Court: Illinois Supreme Court

75 Ill. 132

1874 WL 9203 (Ill.)

JABEZ K. BOTSFORD

v.ANNA L. WILSON et al.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; t?? Hon. WILLIAM W. FARWELL, Judge, presiding.

This was a bill in chancery, filed by Jabez K. Botsford against Anna L. Wilson, administratrix of the estate of Marie E. Wilson, deceased, and others, her heirs at law, to recover back the purchase money of certain real estate, the title to which had failed. The material facts of the case are set forth in the opinion of the court. Complainant's bill being dismissed, on demurrer, he appealed.

Mr. GRANT GOODRICH, for the appellant.

Mr. MELVILLE W. FULLER, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, exhibited in the circuit court of Cook county, by J. K. Botsford, appellant, against appellees, administratrix and heirs of Marie E. Wilson, deceased.

It appears from the bill that in April, 1868, appellant purchased of Marie E. Wilson, a married woman, certain real estate in the city of Chicago, for the sum of $12,000; the purchase money was paid and a general warranty deed executed by Mrs. Wilson and her husband, and delivered to appellant.

The grantor of Mrs. Wilson derived title to the premises by virtue of an administratrix's sale of the estate of Charles O'Conner, deceased. Subsequently, and in 1869, Mary O'Conner, Charles R. O'Conner and Ann O'Conner, the heirs at law of Charles O'Conner, deceased, brought an action of ejectment against appellant; on the trial of the action it was shown that at the time of the death of Charles O'Conner his widow was pregnant with a child, and thereafter Ann O'Conner was born, and became an heir to one-third of the estate of her deceased father, Charles O'Conner, and that she was not made a party to the proceedings by which the land of the estate of Charles O'Conner was sold at the administratrix's sale; that the return of the sheriff indorsed on the process issued in the proceedings to obtain a decree to sell the lands showed no legal service on Charles R. and Mary O'Conner. The three heirs thereupon recovered the premises from appellant. It is also alleged in the bill, that Mrs. Wilson and appellant, in the sale and purchase, acted under a mutual mistake and ignorance in regard to the birth and existence of the posthumous child, nor had either of the parties any knowledge that the return of the sheriff upon the summons issued in the proceedings to sell the premises failed to show a legal service upon Mary and Charles R. O'Conner.

It is also averred that Mrs. Wilson represented that she had the title to the premises which she undertook to sell, and furnished appellant an abstract which showed that the title represented by her came by and through the sale made by the administratrix of Charles O'Conner, deceased.

The bill contains no allegation of fraud, but it is alleged Mrs. Wilson honestly believed she had good title to the premises.

To the bill a general demurrer was filed, which was sustained by the court, and the bill dismissed. The complainant, Botsford, brings the record here, and the question presented is, conceding the allegations of the bill to be true, is appellant entitled to relief against the administratrix and heirs of Mrs. Wilson to recover back the purchase money paid for the premises?

The statute in force at the time Mrs. Wilson conveyed the premises to appellant, and which authorized a married woman to convey her lands, provides that no covenant or warranty, contained in any such deed or conveyance, shall, in any manner, bind or affect such married woman or her heirs, further than to convey from her and her heirs, effectually, her right and interest expressed to be granted or conveyed in such deed or conveyance. Gross' Statutes of 1869, p. 87.

Under this statute, a deed made by a married woman, with covenants of warranty, had no more force or effect to bind her or her heirs than a quitclaim deed; such a deed would pass whatever titles he had in the lands conveyed, but neither she nor her heirs could be liable upon any covenants contained in the deed. Under the statute, a warranty deed executed by a married woman was but a quitclaim deed.

The act of 1861, to protect married women in their separate property, did not repeal, change or modify the former act in any manner whatever.

In Strawn v. Strawn, 50 Ill. 34, this court, in passing upon a warranty deed made by a married woman after the act of 1861 was enacted, said, had it been her own land, and her husband had united in a conveyance of it, containing covenants, she could not be held responsible upon them, any further than that they should be held to convey from her and her heirs, her right and interest in the land, and this immunity is not destroyed by the act of 1861.

The deed made by Mrs. Wilson to appellant, although it contains covenants of title and warranty, she at the time being a married woman, can only, as to her and her heirs, be regarded as a quitclaim deed.

Regarding the deed in that light, the question then is, the title conveyed to appellant having failed, can the administratrix of the estate of Mrs. Wilson, or her heirs, be compelled, in a court of equity, to refund the purchase money paid for the premises?

It is true, the bill alleges that Mrs. Wilson claimed to own the title to the premises conveyed; such may, however, be said of almost every case where lands are conveyed by quitclaim deed; it is not usual for a party to convey lands by deed, unless he has some title or claim upon which to predicate a conveyance, and yet it has not been understood that a grantor was to be held to refund the purchase money upon failure of title, unless the deed contained covenants, or unless fraud was used by the grantor.

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