Strawn v. Strawn

• Citation: 50 Ill. 33,1869 WL 5161
• Parties: PHŒBE G. STRAWNv.WILLIAM STRAWN et al.
• Decision Date: 31 January 1869
• Court: Supreme Court of Illinois

50 Ill. 33

1869 WL 5161 (Ill.)

PHŒBE G. STRAWN

v.WILLIAM STRAWN et al.

Supreme Court of Illinois.

January Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Morgan county; the Hon. CHARLES D. HODGES, Judge, presiding.

The facts sufficiently appear in the opinion.

Messrs. THOMAS & MCCLURE, for the appellant.

Mr. HENRY E. DUMMER, for the appellees.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery, in the Morgan Circuit Court, by Phœbe G. Strawn, against William Strawn and others, heirs at law of Jacob Strawn, deceased, to quiet the title to lands she claimed as surviving grantor, or, in the alternative, that she might have her dower assigned her in those lands, as the widow of the deseased. The case was submitted on bill, answer and replication, and the bill was dismissed, the court deciding that complainant was not entitled, as surviving grantor, to the lands in question, or to dower, as the widow of her deceased husband.

To reverse this decree, complainant appeals to this court.

The facts are briefly these: On the 23d of September, 1864, Jacob Strawn and complainant, his wife, by their deed of that date, sold, confirmed and conveyed to their daughter, Martha, a large quantity of land, of the estimated value of $38,000 and upwards, of which Jacob Strawn was the owner in fee in his own right, to have and to hold the same to her and the heirs of her body begotten, forever. The grantors covenanted for themselves, their heirs and assigns, that they would forever warrant and defend the title to the same.

The usual acknowledgment of its execution was taken by a justice of the peace, in which the complainant formally relinquished her dower, as prescribed by the statute.

As part of the same transaction, the grantee, Martha Strawn, gave an acknowledgment in writing not under seal, that she had received this deed, and in consideration thereof, agreed that her father should have and retain the possession of the land and use it, free of rent or charge, until she was twenty-three years of age, at which time possession was to be surrendered to her. She also executed a receipt acknowledging that she had received of her father a deed for the land of the value above stated, and $300 in money, as an advancement, for which sum she agreed to account in the settlement of her father's estate after his death, they being the only advancement made to her to that date.

On the 23d of August, 1865, Jacob Strawn died, intestate, in occupancy of the lands by virtue of this agreement. He left surviving him, the complainant, his widow, three children by a former wife, and five, including Martha, the offspring of complainant.

Upon the death of Jacob Strawn, complainant took possession of all the real estate, including the lands conveyed to Martha, claiming an interest therein, and acting as the agent of her five children, but without the consent of the three oldest children by the first marriage, which possession she held up to the time of filing the bill of complaint.

On the 15th day of July, 1868, about four months before she reached the age of twenty-three, Martha died, unmarried, and leaving no child or descendant, but having executed a will in due form, devising all of her estate, except a few small legacies, to her mother, the complainant, but no claim is made under this will.

Under this state of facts, the complainant claims that she is entitled to the lands conveyed by this deed as the surviving grantor, or, if that claim is not allowed, that she is entitled, as widow of Jacob Strawn, to her dower in them. Both these claims are denied by the older brothers and children, and by the younger, her offspring, the question is submitted to the court.

The first proposition of appellant is not denied,--that when husband and wife are jointly seized in fee of real estate, upon the death of one, the land passes to the survivor. But this case shows appellant was not, at the time of executing the deed to Martha, seized of any estate in these lands--that she then had in them an inchoate right of dower only, which she formally relinquished by her deed.

The second proposition is, that, by the deed to Martha, the husband and wife claim to be seized in fee of the lands conveyed, and by this claim and their warranty of title, defendants are estopped from denying such seizin.

This proposition includes the third, that although it be true the title to the land was in Jacob Strawn, the defendants have no right to set up this fact and avail themselves of it.

These propositions are based upon...