Bozarth v. Largent

• Decision Date: 05 April 1889
• Citation: 21 N.E. 218,128 Ill. 95
• Parties: BOZARTH et al. v. LARGENT.
• Court: Illinois Supreme Court

128 Ill. 95

21 N.E. 218

BOZARTH et al.

v.LARGENT.

Supreme Court of Illinois.

April 5, 1889.

Error to circuit court, Tazewell county; N. W. GREEN, Judge.B. S. Prettyman, for plaintiffs.

Wm. Don Maus and T. N. Green, for defendant.

SHOPE, J.

This was an action of ejectment, brought by James Bozarth, Mary L. Bozarth, and Ida B. Cook, the heirs at law of Louisa Bozarth, deceased, against William Largent, for the recovery in fee of the E. 2/1 S. W. 4/1 section 17, and the W. 1/2 of the S. W. 4/1 of section 8, all in township 23 N., range 2 W. of the third P. M., in Tazewell county. General issue was filed, and a trial had, resulting in a finding and judgment for defendant. Plaintiffs below prosecute this writ of error. The facts are as follows: Louisa Bozarth, now deceased, being the owner in fee of said lands, which she had inherited from her father, was, on August 19, 1863, married to Asa Bozarth. They lived together as husband and wife until November 1, 1868, when she died, intestate, leaving her husband, who is still living, and the plaintiffs, her children and only heirs at law, surviving her. On March 5, 1868, she and her husband executed their mortgage upon the lands in controversy, and other lands of the husband, to Anna R. Cohrs, to secure the payment of $2,500 evidenced by the note of Asa Bozarth, the husband, payable two years after date, with 10 per cent. interest, payable annually, and containing a clause that, in default of the payment of the annual interest, the principal should become due. The mortgage was in the usual form, and contained a release of all homestead rights; and the wife acknowledged the release of all her rights of homestead, but the husband did not acknowledge the release of homestead, his acknowledgment being simply that he acknowledged the mortgage to be his free act and deed for the uses and purposes therein set forth. On March 27, 1873, Mary C. Maus, the assignee of said note and mortgage, filed her bill in the circuit court of Tazewell county against the said Asa Bozarth, and the plaintiffs and others, for the foreclosure of said mortgage. Summons was duly served on all the defendants, and a guardian ad litemwas appointed for James, Ida B., and Mary Bozarth, the plaintiffs, they being then minors, who answered. At the May term, 1873, a decree was entered, foreclosing said mortgage, and finding due thereon the sum of $2,973.75, and a solicitor's fee of $125, provided for in the mortgage, and ordering a sale of the premises, etc. Sale was made under said decree July 12, 1873, to William Don Maus, for the sum of $3,048.84. The sale was made en masse, the master having failed to obtain bids on the several tracts when separately offered. Certificate of purchase was made and recorded the same day. At the May term, 1874, of the McLean circuit court, Albert Welch recovered a judgment against the said Asa Bozarth, John Bozarth, and Elihu Bozarth for $1,250.50 and costs. Execution was issued to the sheriff of McLean county, and returned August 19, 1874, when Welch assigned the judgment to George W. Thompson. On the same day an alias execution issued to the sheriff of Tazewell county, which came to that officer's hands August 20, 1874, and was levied on all the land sold under the foreclosure decree, and a certificate of levy was filed and recorded August 31, 1874. On October 10, 1874, a certificate of redemption from the sale under the decree of July 12, 1873, was executed by the sheriff of Tazewell county, and recorded the same day. On October 31, 1874, the land was sold en masse by the sheriff to Welch for redemption money and costs. On January 14, 1875, after the term of office of the sheriff had expired, he made and delivered to Welch a deed for the premises, dating the same as of the day of sale. On the same day, Pratt, the then sheriff, also executed a deed to Welch for the lands on the same sale. Welch and wife, by their deed of December 1, 1875, conveyed the land to John Bozarth, and he, on May 22, 1882, conveyed the same to William Largent, defendant in error, who went into possession of the same.

At the common law a husband held in right of his wife all her lands in possession, and owned the rents and profits thereof absolutely. 1 Washb. Real Prop. 276; Tied. Real Prop. § 90; Haralson v. Bridges, 14 Ill. 37;Clapp v. Inhabitants of Stoughton, 10 Pick. 463;Decker v. Livingston, 15 Johns. 479. The birth of issue was not necessary to this right of the husband, which continued during the joint lives of the husband and wife. It was called an estate during coverture, or the husband's freehold estate jure uxoris. Kibbie v. Williams, 58 Ill. 30;Butterfield v. Beall, 3 Ind. 203;Montgomery v. Tate, 12 Ind. 615;Croft v. Wilbar, 7 Allen, 248. It differed from curtesy initiate, in its being a vested estate in possession, while the latter is a contingent future estate, dependent upon the birth of issue. Wright's Case, 2 Md. 429-453. It is held in right of the wife, and was not added to or diminished when curtesy initiated arose. Subject to the husband's beneficial enjoyment during coverture, the ownership remained in the wife, and, on dissolution of the marriage, was discharged from such estate of the husband. Stew. Husb. & W. § 146. Where there was marriage, seisin of the wife, and birth of issue capable of inheriting, the husband, by the common law, took an estate in the wife's land during coverture. This was an estate of tenancy by the curtesy initiate, and which would become consummate upon the death of the wife in the life-time of the tenant. A tenant by the curtesy was seised of an estate of freehold, which was subject to alienation, and was liable to be taken on execution for his debts. Tied. Real Prop. § 101; Howey v. Goings, 13 Ill. 95;Jacobs v. Rice, 33 Ill. 369;Cole v. Van Riper, 44 Ill. 58;Beach v. Miller, 51 Ill. 206;Lang v. Hitchcock, 99 Ill. 550.

The act of 1861, known as the ‘Married Woman's Act’ provides: ‘That all the property, both real and personal, belonging to any married woman as her sole and separate property, or which any woman hereafter married owns at the time of her marriage, or which any married woman during coverture acquires in good faith from any person other than her husband, by descent, devise, or otherwise, together with all the rents, issues, increase, and profits thereof, shall, notwithstanding her marriage, be and remain during coverture, her sole and separate property, under her sole control, and be held, owned, possessed, and enjoyed by her the same as though she was sole and unmarried, and shall not be subject to the disposal, control, or interference of her husband, and shall be exempt from execution or attachment for the debts of her husband.’ In this case, Louisa Bozarth, who was common source of title, was the owner of the land in controversy, as it is conceded, at the time of her marriage, August 19, 1863, to Asa Bozarth. The marriage having taken place after the act of 1861 took effect, and the wife being then the owner of the land in question, it was not, during her coverture, subject to the control, interference, or disposal of her husband, or liable for his debts or other obligations. The effect of the statute was to abrogate the husband's estate in her lands, or the estate he would have had at common law during the coverture, and consequently during that period he had no estate therein liable to execution or attachment. The act did away with the estate he would have had at common law, growing out of the mere marital relation, and of his curtesy initiate; and it therefore follows, if the wife had been living at the time of the redemption and sale by the creditor of her husband, that proceeding would not have divested any right of herself or husband, nor conferred any right upon the purchaser.

The question, however, remains whether Asa Bozarth, the husband, on the death of his wife, in 1868, acquired an estate in her land as tenant by the curtesy. We have already seen that the property of a married woman, under the act of 1861, notwithstanding her marriage, was to be and remain during coverture her sole and separate property, and was not subject to the husband's control, or liable for his debts. The general effect of statutes of this kind is to destroy the marital rights of the husband in his wife's estate; but a statute may exempt her property from his debts without in any way destroying his rights therein. Unless tenancy by the curtesy is destroyed by the statute by express words or necessary implication, or by the wife's disposition of her property by virtue of her power over it, he will be held to have an estate by the curtesy at her death. The prevailing opinion seems to be that while separate property acts do suspend during coverture all the rights of a husband, or his creditors, in statutory separate property, they do not destroy curtesy, or prevent its vesting on her death, unless such an event is clearly excluded by the statute; as where the statute not only provides that the property of the wife shall be hers, etc., but also defines her husband's interest therein, if she dies intestate, in which case curtesy is excluded. Where she has power to alienate or charge her property, she may thereby defeat curtesy, but the statute must contain express words to enable her to convey alone; and, also, when she has power of disposition of the property by will she may thereby defeat curtesy. Stew. Husb. & W. §§ 161, 243; In re Winne, 2 Lans, 21; Hatfield v. Sneden, 54 N. Y. 280;Noble v. McFarland, 51 Ill. 226;Freeman v. Hartman, 45 Ill. 57; Cole v. Van Riper, supra.

It will be seen that the married woman's act of 1861 does not attempt to define the husband's rights in his wife's property after her decease, nor does it give her any power of disposal of her separate property, independent of the husband. The purpose and effect of the statute was to secure to the wife the control of her separate property during coverture....