Lewis v. Graves

• Decision Date: 30 September 1876
• Citation: 84 Ill. 205,1876 WL 10474
• Parties: EDWARD C. LEWISv.WILLARD GRAVES.
• Court: Illinois Supreme Court

84 Ill. 205

1876 WL 10474 (Ill.)

EDWARD C. LEWIS

v.WILLARD GRAVES.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of La Salle county; the Hon. EDWIN S. LELAND, Judge, presiding.

Mrs. Margaret Winters, the wife of John Winters, living separate from her husband and transacting business in her own name, executed to Graves a mortgage on the west 40 feet of lot 10, in block 117, in the city of LaSalle, part of her separate estate, to secure to him the payment of $600 and interest, money due him from her as the purchase money of other real estate conveyed to her by him. The mortgage was executed October 27, 1866, and recorded on the 13th of November, of the same year.

On the 17th day of July, 1869, this west 40 feet of lot 10 was sold by the master in chancery at public sale to Lewis for $403.69, and was afterwards, in pursuance of that sale, conveyed by master's deed to Lewis on the 19th of October, 1870. The master's sale was founded upon and made in pursuance of a decree of the circuit court in a proceeding instituted by Philip Conlin against Margaret Winters and her husband for a mechanic's lien upon this property, for labor and material furnished by Conlin after the recording of the mortgage, in making improvements upon the same.

This is a proceeding, instituted in chancery, by Graves against Mrs. Winters and her husband and Lewis, seeking, among other things, to subject this property to the payment of this mortgage debt, and to declare this property bound for the same by a lien paramount to the title of Lewis.

On hearing, the circuit court made a decree to that effect, and providing for the sale of the property in satisfaction of the mortgage debt.

Lewis brings this appeal.

There were other matters involved in the suit, and covered by the decree, in which Lewis had no interest.

Messrs. ELDRIDGE & LEWIS, for the appellant.

Mr. L. B. CROOKER, for the appellee.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

The decree in this case can not be sustained. It has been settled by this court that the laws relating to the conveyance of the real estate of a married woman were not changed by the Married Woman's Act of 1861. Cole v. Van Riper, 44 Ill. 58, and Bressler v. Kent, 61 Ill. 426. It follows that the mortgage, as a conveyance, was void, the husband of Mrs. Winters not having joined in its execution. It is, however, contended by appellee that the estate of a married woman should “be held in...