Goodkind v. Bartlett
Decision Date | 22 January 1891 |
Citation | 136 Ill. 18,26 N.E. 387 |
Parties | GOODKIND v. BARTLETT. |
Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Cook county.
A. M. Pence, for appellant.
James S. Murray, for appellee.
This bill was filed in the circuit court of Cook county to enforce the specific performance of a contract for the purchase of a certain lot 8, therein described. Goodkind, the appellant, was seller of the lot, and complainant below, and Bartlett, the appellee, purchaser of the lot, and defendant below. The contract between the parties provided that the title should be a good fee-simple title in the seller, and should be free from all inchoate right or rights of dower in any one. The matter or matters at issue arose upon a demurrer to the bill. The demurrer was sustained and the bill dismissed for want of equity.
The principal, if not only, question in the case is whether or not Rachel B. Hummer, wife of one John N. Hummer, who was a former owner of an undivided third of the premises, has an inchoate right of dower in the lot which has never been released or barred. This court, upon this direct appeal from the circuit court, has no jurisdiction to consider and determine the question indicated, unless it be that either in its decision, or otherwise in the case, a freehold is involved. The rule is that a ‘freehold’ is involved, within the sense and contemplation of the constitution and the statute, only in cases where either the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, or where the title to a freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue. Sanford v. Kane, 127 Ill. 591, 20 N. E. Rep. 810; Malaer v. Hudgens, 130 Ill. 225, 22 N. E. Rep. 855; Railroad Co. v. Watson, 105 Ill. 217. An estate of dower is a freehold estate, but a right of dower in a married woman, before it has become consummate by the death of her husband, is a mere intangible, inchoate, contingent expectancy, and not only is not an interest in land, but does not even rise to the dignity of a vested right. Blain v. Harrison, 11 Ill. 384;Robbins v. Kinzie, 45 Ill. 357;Johnson v. Montgomery, 51 Ill. 185. It follows that in the decision of the question whether or not Mrs. Hummer has an existing inchoate right of dower in the lot, the title to a freehold is not in issue.
It is alleged in the bill of complaint, in substance, that Henry M. Newberger, who was an intermediate owner of the premises in the chain of title, sold and conveyed the lot on October 5, 1878, to Clara Goodkind, and that the deed then executed was filed for record on October 8, 1878; that two years thereafter, in 1880, certain realestate agents made a contract in the name of H. N. Newberger to convey the lot to Henry H. Walker, which contract was filed for record in 1880; that there does not appear of record in the record's office any authority from Henry M. Newberger or H. N. Newberger to make any contract with reference to such land, and that said Walker has never asserted any claim under said pretended contract, or taken any steps to enforce the same; that def...
To continue reading
Request your trial-
Nevitt v. Woodburn
...is so put in issue by the pleadings that the decision of the case necessarily involves the decision of that issue. Goodkind v. Bartlett, 136 Ill. 18, 26 N. E. 387;Sanford v. Kane, 127 Ill. 591, 20 N. E. 810;Malaer v. Hudgens, 130 Ill. 225, 22 N. E. 855;Ryan v. Sanford, 133 Ill. 291, 24 N. E......
-
Firebaugh v. Wittenberg
...Graham, 23 Ill. 81;Robbins v. Kinzie, 45 Ill. 354;Johnson v. Montgomery, 51 Ill. 185;Henson v. Moore, 104 Ill. 403; and Goodkind v. Bartlett, 136 Ill. 18, 26 N. E. 387. The decision in Russell v. Rumsey, supra, was overruled in McNeer v. McNeer, 142 Ill. 388, 32 N. E. 681,19 L. R. A. 256, w......
-
Burroughs v. Kotz
...Co. v. Peck, 112 Ill. 408; Kirchoff v. Union Mutual Life Ins. Co., supra; Adkins v. Beane, 135 Ill. 530, 26 N. E. 657;Goodkind v. Bartlett, 136 Ill. 18, 26 N. E. 387;Nevitt v. Woodburn, 175 Ill. 376, 51 N. E. 593;Schoendubee v. Investment Union, 183 Ill. 139, 55 N. E. 710; Adamski v. Wieczo......
-
Allott v. American Strawboard Co.
...Rigdon v. Shirk, 127 Ill. 411, 19 N. E. 698. It is a title or incumbrance apparently valid but actually invalid. Goodkind v. Bartlett, 136 Ill. 18, 26 N. E. 387. It exists where the claim of an adverse party to land is valid upon the face of the instrument or the proceeding sought to be set......