Coburn v. Herrington

• Decision Date: 15 May 1885
• Citation: 29 N.E. 478,114 Ill. 104
• Parties: COBURN v. HERRINGTON.
• Court: Illinois Supreme Court

114 Ill. 104

29 N.E. 478

COBURN

v.HERRINGTON.¹

Supreme Court of Illinois.

May 15, 1885.

Appeal from superior court, Cook county; HENRY M. SHEPARD, Judge.

Bill by Almira Herrington against Lewis L. Coburn for assignment of dower. On hearing, a decree was rendered for complainant. Defendant appeals. Affirmed.Lewis L. Coburn, prose.

French & Halsey and D. B. Sherwood, for appellee.

CRAIG, J.

This was a bill brought by Almira Herrington against appellant for the assignment of dower in certain premises in Chicago. The case was before us at a former term, and is reported in 108 Ill. 613. When the case was here before the main question in dispute was as to the effect of a decree of partition upon appellee's claim for dower, neither appellee nor her husband having been a party to the decree. We then held that appellee was not concluded by the decree of partition, and the decree dismissing the bill was reversed, and the cause remanded for another hearing. On the second hearing a decree was rendered in appellee's favor, and Coburn, the defendant in the bill, appealed.

The appellee claimed dower in the premises as widow of Nathan P. Herrington, deceased, who, during his life-time, was seised in fee of the premises, and conveyed the property to Luther Dearborn, on May 31, 1857. Appelleejoined in the deed, and her claim for dower rests upon a defect in the acknowledgment of the deed. The certificate of acknowledgment is as follows: ‘State of Illinois, Whiteside county-ss.: I, John M. Brown, a justice of the peace in and for said county, in the state aforesaid, do hereby certify that Nathan P. Herrington, personally known to me as the same person whose name is subscribed to the foregoing instrument of writing, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said Almira Hcrrington, wife of the said Nathan P. Herrington, having been by me examined separate and apart and out of the hearing of her husband, and the contents and meaning of the said instrument of writing having been by me made known to her, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned without compuision of her said husband, and that she does not wish to retract the same. Given under my hand and seal, this 18th day of April, A. D. 1857. JOHN M. BROWN, J. P. [Seal.]’

The act of 1853, regulating conveyances in this state, (Laws 1853, p. 89,) was in force at the time the deed in question was acknowledged. This act provides that no officer shall take the acknowledgment of any person to any deed unless the grantor shall be personally known to the officer, or shall be proved by a credible witness; and the officer shall state in his certificate that such person was personally known, etc. It also provides that a married woman may release her dower in lands by joining with her husband in a deed of conveyance, and appearing before an officer and acknowledging such deed; and, if such woman shall not be personally known to the officer to be the person who executed the deed, he shall ascertain the fact by the testimony of a competent witness; and, if the woman acknowledges, on an...