Martin v. William Hargardine.

• Decision Date: 31 January 1868
• Citation: 46 Ill. 322,1868 WL 4874
• Parties: LEAH MARTIN et al.v.WILLIAM HARGARDINE.
• Court: Illinois Supreme Court

46 Ill. 322

1868 WL 4874 (Ill.)

LEAH MARTIN et al.

v.WILLIAM HARGARDINE.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Logan county; the Hon. JOHN M. SCOTT, Judge, presiding.

The facts in this case are sufficiently stated in the opinion of the court.

Messrs. WILLIAMS & BURR, for the plaintiffs in error.

Messrs. PALMER & HAY, for the defendant in error.

Mr. JUSTICE LAWRENCE delivered the opinion of the court:

This was a bill in chancery, brought by Hargardine against the widow and minor heirs of Christopher Orenduff, deceased. It appears the latter, during his life, had executed a mortgage with power of sale, under which the premises described in the mortgage had been sold, purchased by one Evans, and conveyed by him to Hargardine. He alleges in this bill that there was a mistake in said mortgage in the description of the premises; the north-east quarter of a certain section having been described instead of the south-east. The bill was taken pro confesso as to the widow, and a guardian ad litem having been appointed for the heirs, the court pronounced a decree as prayed in the bill, correcting the alleged error, directing a sale of the land by the master, and cutting off the widow's dower. The widow and heirs now prosecute a writ of error. It is first insisted by plaintiffs in error, that the sheriff's return upon the summons only shows a service of one copy upon all the defendants. The sheriff returned that he had served the writ “by reading and delivering a true copy of the same to the within named Leah Orenduff, Joseph Orenduff, and George Orenduff.” He then charges upon the margin, fees for serving three copies. The taxing of these costs is a part of his official return, and removes all doubt upon the point raised.

It is also urged that the record does not contain the evidence. The facts proven are recited in the decree, and this, as has been often decided by this court, is sufficient.

It is said that the lands were sold en masse. But the master reports that he first offered them in separate parcels and received no bids. He then offered and sold them in a body. The reason is apparent, from the fact that the lands, though described as different parts of two sections, all lay contiguous to each other.

These are the only objections taken to the proceedings, so far as they relate to the title of the heirs, and they are not ground for reversal as to them.

The decree, however, as to the widow, Leah Orenduff, was erroneous. Even if the certificate of acknowledgment had been correct in point of form, the court had no power to apply it to any other lands than those described in the deed. The difference between correcting a deed as to the husband, or, if he is dead, as to the heirs, and to the wife or widow, is this: as to the husband, the deed is made in execution of a contract between the grantor and grantee, and if it does not properly express the contract as really made, either as to the description of the lands or otherwise, it can be corrected by a court of chancery on the making of satisfactory proof. So if the contract is executed on the part of the purchaser, by the payment or tender of the purchase money in compliance with its terms, and the vendor refuses to convey, the court will compel a conveyance. But the wife is incapable of making a contract which will bind her as to her dower. She can relinquish it to the grantee of her...