Doane v. Walker

• Decision Date: 31 March 1882
• Citation: 1882 WL 10194,101 Ill. 628
• Parties: JOHN W. DOANEv.MARTHA A. WALKER.
• Court: Illinois Supreme Court

101 Ill. 628

1882 WL 10194 (Ill.)

JOHN W. DOANE

v.MARTHA A. WALKER.

Supreme Court of Illinois.

Filed at Ottawa Dec. 12, 1881.Rehearing denied March Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

On the 28th of May, 1874, Martin O. Walker died intestate, leaving Martha A. Walker, his widow, and Samuel O. and Edward S. Walker, his only heirs. At the time of Walker's death he was the owner in fee, subject to certain incumbrances, of several pieces of land in the city of Chicago, Cook county, including what is known, respectively, as the Fort Dearborn and the Ellis avenue property, the latter being the property now in controversy. In August following, the widow, Martha A. Walker, filed a bill in the Superior Court of Cook county against the heirs and administrator of Martin O. Walker, for the assignment of dower in all of the above mentioned lands. In January following, a decree was entered in the cause, adjudging her entitled absolutely to dower in all the property except the Fort Dearborn property, and contingently entitled to dower in that, and appointing commissioners to assign the same. On the 12th of July, 1877, the commissioners reported the premises not susceptible of division without prejudice, and at the instance of petitioner the yearly value of her dower in each separate tract was assessed by a jury, being fixed in the Ellis avenue property at $350 per annum, and in the Fort Dearborn property at $1500, subject to the contingency above referred to, and a final decree was entered accordingly, April 10, 1878. On appeal to the Appellate Court by the heirs, the above decree was reversed so far as it affected the Fort Dearborn property, but as respects the rest, including the Ellis avenue property, it was in all things affirmed, and is still in full force and effect.

Pending this proceeding for the assignment of dower, to-wit, on the 4th of April, 1876, Augustus L. Chetlain, as administrator of Martin O. Walker, filed a petition in the probate court of Cook county for an order of sale of real estate for the payment of the debts of said estate, making Martha A. Walker, the widow, a party. In her answer to said petition she simply sets up her claim to dower in all the lands referred to in the petition, and the fact that the bill filed by her for the assignment of dower was then pending and undetermined in the Superior Court of Cook county.

On the 30th of August, 1878, an order was entered by the probate court in said proceeding, directing the administrator to sell, subject to the widow's dower, the real estate mentioned in the petition, or so much thereof as might be necessary for the payment of debts. Under this order of sale, John Doane, the appellant, on the 15th of October, 1878, at the administrator's sale, purchased the Ellis avenue property, the sale being duly approved by the court, and on the 22d of the same month received of the administrator a deed for the premises, and no question is made as to the regularity or validity of the proceedings.

The decree in the proceeding for the assignment of dower relating to the Ellis avenue property, directed the sum of $87.50 to be paid to appellee on the 21st day of May, 1878, and the like sum of $87.50 quarter-yearly thereafter, on the 21st days of August, November, February and May, during her natural life, “and these payments, by the further order of the court, were secured by making them a specific lien upon the property, with power of sale in default of payment.” Upon the reversal of the decree in the Superior Court as to the Fort Dearborn property, the cause was remanded for further proceedings as to that property, and the same is still undetermined.

Under this state of facts appellee refused to surrender to appellant the Ellis avenue property, on the sole ground that her dower had not been assigned in the Fort Dearborn property. Appellant, after waiting a considerable time for the determination of that suit, filed the present bill, by which he seeks to obtain possession of the premises in controversy, an account of the rents and profits during the time he has been kept out of possession, and to have the same applied, so far as they shall be required for that purpose, in discharge and satisfaction of what is due and to become due appellee on account of dower in said premises, which is declared to be an incumbrance and cloud on appellant's title, and the same is asked to be removed as such.

In addition to the facts already stated, the bill in this case charges that the property in question is worth some $30,000; that the improvements thereon are much out of repair, and are becoming valueless by reason of waste permitted by appellee; “that during the six years and upwards since the death of M. O. Walker, no improvements or repairs have been put on the buildings, and that they are rapidly deteriorating in value by appellee's neglect, and appellant's property rights therein are becoming greatly injured by refusal of appellee to deliver possession;” that she is insolvent, and unable to respond in damages for the unlawful detention of the premises; that during this time she has refused to pay any portion of the taxes and special assessments on said property, which appellant has been forced to pay; that at the time of appellant's purchase there were unpaid taxes in arrear upon the premises, amounting to $6000, which, in addition to the purchase money, he has since paid, and that the rents of the premises during the time he has been kept out of possession are double the amount due appellee on account of dower.

The Superior Court sustained a demurrer to this bill, and entered a final decree dismissing the same, and on appeal this decree was affirmed by the Appellate Court for the First District, and appellant thereupon removed the record to this court for review. Messrs. SMALL & MOORE, and Mr. GEO. L. PADDOCK, for the appellant:

Whenever the dower right is determined by joinder in the husband's deed of the homestead under the statutory formalities, the wife, ipso facto, ceases to be dowable of that land, and, as a legal result, her quarantine rights are barred, they being incident to the dower right. Slatter v. Meek, 35 Ala. 528.

If the widow may bar herself by acts prior to the decease of the husband, she certainly may by acts done after that time. Acceptance of a collateral satisfaction in lieu of dower is one of the modes in which she may so bar her claim of dower. Jones v. Powell, 6 Johns. Ch. 194.

The statutory allowance in lieu of dower, whether regarded as resulting from the voluntary act of the petitioner, or as a legal result of her relations to the property, is, in substance, a collateral satisfaction of the dower claim. Rev. Stat. 1845, “Dower,” sec. 28.

It follows, that the dowress is in the attitude of any one else who has transferred his rights to property. She can not retain the thing transferred so long as the instrument working the transfer is in force and unimpeached in any respect.

The decree is based on matter arising since the former decree, requiring averment and extrinsic proof, in order that it may be made to appear to the court. The present is substantially a bill to enforce the former decree.

Speaking of bills to carry decrees into execution, Daniell, in his Chancery Pleading and Practice, page 1585, says: “A bill of this description may also be brought by or against a person claiming as assignee of a party to the decree,”--citing Organ v. Gardiner, 1 Ch. Ca. 231; Lord Carteret v. Paschal, 3 P. Wms. 197; Binks v. Binks, 2 Bligh, 593.

Messrs. ISHAM & LINCOLN, for the appellee:

Appellee defends upon the ground that ever since the death of her husband she has been and is entitled to the possession of the homestead, under section 27 of the Dower act then in force. Until dower has been assigned in the whole of her husband's estate, the statute has given her a shelter for herself and family. Her dower in the major part of the estate has not yet been assigned. See Strawn v. Strawn's Heirs, 50 Ill. 256.

If appellant has any right to the possession of this property, his remedy is at law.

If, as appellant contends, the widow's dower has been assigned and her quarantine has expired, the heir or his assigns may maintain ejectment against her, and it is the proper remedy. 2 Scribner on Dower, p. 31; Jackson v. O'Donaghy, 7 Johns. 247.

Courts of chancery, in this State, have no jurisdiction in suits to recover possession of land held adversely. Green v. Spring, 43 Ill. 280.

Neither is there any matter of account involved in this case such as will call for interference by a court of chancery. Craig v. McKinney, 72 Ill. 312.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

A rehearing having been granted in this case, it is again brought before us for further consideration. When first before us, from the consideration then given it the conclusion was reached, that under the facts presented by the record appellee, by virtue of the 27th section of the Dower act, was, notwithstanding the decree in the proceeding to assign dower, entitled to retain possession of the premises in controversy until her dower was assigned in the Fort Dearborn property also. Upon more mature consideration, however, we are satisfied that the conclusion then reached can not be sustained, either upon principle or authority. The error into which the court then fell is attributable, probably, to giving an undue importance to the section of the statute just referred to, and at the same time under-estimating the legal effect of the decrees, both in the proceeding to assign dower and to sell the premises to pay debts.

At first blush it would seem plausible to conclude, that inasmuch as the statute expressly declares the widow shall retain possession of the entire homestead premises until her dower is assigned, courts are...