Meyer v. Joseph Pfeiffer Et Ux.

• Decision Date: 30 June 1869
• Parties: MAGDALENA MEYERv.JOSEPH PFEIFFER et ux.
• Court: Illinois Supreme Court

50 Ill. 485

1869 WL 5257 (Ill.)

MAGDALENA MEYER

v.JOSEPH PFEIFFER et ux.

Supreme Court of Illinois.

June Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

The opinion states the case.

Mr. WM. H. UNDERWOOD, for the appellant.

Messrs. KASE & WILDERMAN, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a suit in equity, commenced by appellees, in the St. Clair Circuit Court, against appellant, for the purpose of having appellant's dower assigned to her in the lands owned by Joseph Meyer at the time of his death. The bill alleges that appellant is the widow, and Magdalena Pfeiffer is his only heir at law, who had intermarried with Joseph Pfeiffer. The bill waives the answer under oath, and prays that dower may be assigned by metes and bounds if practicable, but if not, that it may be assessed, and if deemed advisable, that the lands be sold subject to the widow's dower.

Appellant answered, admitting the truth of the allegations of the bill, and claimed that she was entitled to a homestead in the premises. Appellees excepted to the answer and the exceptions were sustained. The court thereupon found the allegations of the bill to be true, and appointed commissioners to assign dower. They reported that it could not be assigned without manifest prejudice to the property. Subsequently a jury were empaneled to assess the yearly value of the widow's dower, and they found it to amount to $133.35 and the court rendered a decree making it a lien on the premises, and on default in its payment ordered that the premises be sold and that execution issue therefor. The court also decreed that the premises be sold subject to the payment of the yearly dower of the widow.

It is first urged, that the court erred in rendering a decree for the gross amount of the yearly value of the widow's dower and charging the several tracts of land with its payment, instead of ascertaining the yearly value of her dower in each separate tract, and only charging each with the sum arising from them severally. If this was an error, as it probably was, it is not such as appellant can urge. It in nowise injures or impairs her rights. On the contrary, it renders all of the lands subject to the portion arising from each piece severally. The decree therefore affords her a higher and better security than if the amount arising from the several tracts had been charged upon each tract out of which it arose. This is not an error of which she has any right to complain.

The description of one of the tracts as a part of the N. W. qr. of N. E. qr. of section 12, without quantity or further description is insufficient. From such a description it could never be ascertained, or separated from the balance of the quarter. It does not appear in what part of the forty acre tract it is situated, or the number of acres it embraces. Even if the decree would operate as a bar to a proceeding for the assignment of dower in this tract, by the widow, if it should become necessary for its sale, to carry the decree into effect, it could hardly be held that a purchaser would acquire title by such a description.

There was no...