Johnson v. Watson

• Decision Date: 30 September 1877
• Citation: 87 Ill. 535,1877 WL 9893
• Parties: JOHN JOHNSONv.HANNAH E. WATSON,JOHN NELSONv.HANNAH E. WATSON.
• Court: Illinois Supreme Court

87 Ill. 535

1877 WL 9893 (Ill.)

JOHN JOHNSON

v.HANNAH E. WATSON,JOHN NELSON

v.HANNAH E. WATSON.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Kendall county; the Hon. EDWIN S. LELAND, Judge, presiding.

Mr. B. F. PARKS, and Mr. S. W. HARRIS, for the plaintiff in error.

Mr. CHARLES BLANCHARD, Mr. EDWIN N. LEWIS, and Mr. IRUS COY, for the defendant in error. Mr. JUSTICE BREESE delivered the opinion of the Court:

This was ejectment, in the Kendall circuit court, brought by Hannah E. Watson, plaintiff, and against John Johnson, defendant. The summons was served August 24, 1869, and there was a trial by the court without a jury, by consent of parties, which resulted in a judgment for the plaintiff, that she was entitled to one-third of the premises described in the declaration, as her reasonable dower during her natural life as widow of William F. Lutyens. A new trial was granted the defendant under the statute, and, at the January term, 1871, the cause was again tried by the court by consent, on the general issue, which resulted in a judgment for the plaintiff, that she was entitled to one undivided third part of all the land in the declaration mentioned, as her reasonable dower during her natural life, as the widow of William F. Lutyens, “who, in his lifetime, was her husband, and as such, seized of said land.”

Commissioners were appointed by the court to set off to the plaintiff her dower so found, by metes and bounds, which was done, and their report thereof made to the court. A motion for a new trial was denied, and judgment rendered for the plaintiff.

To reverse this judgment the defendant prosecutes this writ of error, insisting the judgment is against the law and the evidence, and that a new trial should have been awarded.

This action was commenced by the defendant in error, under the authority of section 45, chapter 36, title “Ejectment,” R. S. 1845, p. 210, and no point is made on the regularity of the proceedings in the ejectment case.

In order to a proper understanding of the case, the prominent facts will be stated. There is no controversy about the title held by Lutyens, in his lifetime, to the premises in controversy. Holding the title, Lutyens, and his wife, the defendant in error here, on August 2, 1859, executed and delivered to one John B. Sherman a mortgage, with full covenants, on these premises, to secure a note of the same date, which Lutyens had executed to Sherman. The deed provided, in case of default in the payment of the money, Sherman, or his attorney, after having advertised the sale sixty days in a newspaper published in Oswego, in Kendall county, might sell the premises at public vendue to the highest bidder for cash, and execute conveyances therefor. This mortgage was duly acknowledged before a notary public of Kendall county, attested by his notarial seal, on the same second day of August, 1859, in which acknowledgment it is certified by the notary that Hannah E., wife of the said William F. Lutyens, was examined separate and apart from her husband, and the contents and meaning of the deed fully explained to her, and she acknowledged that she executed the deed voluntarily and freely, and relinquished her dower to the said lands and tenements mentioned, without compulsion of her husband. Default having been made in the payment of the note, Sherman, on July 3, 1863, executed a power of attorney to one Bernet B. Chambers, authorizing him to sell and convey the premises.

The stipulated notice of the sale was given, and the premises sold at the time and place specified, many persons being present, and the same were stricken off to one Oliver H. Lee, as the highest and best bidder, for the sum of six hundred and twenty dollars. Lee and wife, on July 10, 1863, conveyed the premises to John B. Sherman, and the latter, by quitclaim deed with a special warranty, conveyed the premises, October 14, 1863, to John Jackson, the plaintiff in error, and defendant in the action of ejectment. Johnson, on January 17, 1864, by quitclaim deed conveyed the north half of the same premises to John Nelson, against whom a similar action was brought, and the same recovery had, and who prosecutes his writ of error to this court, and we have considered the cases together.

The point chiefly relied on by defendant in error to sustain this judgment, is, the alleged fact that Lee was not the purchaser at this sale, but that one Hartwell was the purchaser, the premises having been stricken off to him. There is testimony to this fact, but...