Bowen v. McCarthy

Appellate Court of Illinois

Bowen v. McCarthy

25 Ill. App. 549, 1887 Ill. App. LEXIS 161

DecidedApril 11, 1888

StatusPublished

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Bowen v. McCarthy, 25 Ill. App. 549, 1887 Ill. App. LEXIS 161 (Ill. Ct. App. 1888).

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Opinion

McAllister, J.

The act entitled ec An act to protect mar-

ried women in their separate property,” went into force April 24, 1861. But before said act went into force, and in 1860, Sidney P. Walker intermarried with Josephine Spear, who was the owner in fee of the premises in question in this suit. Of that marriage only one child was bom, viz., Mary Louise Walker. But she was not born until after said act went into force, and December 21, 1863. Under that state of facts, the only estate which Sidney P. Walker had in his wife’s said real estate was that of a tenant during coverture; and she having died in the year 1864, such tenancy was thereby terminated. Rose v. Sanderson, 38 Ill. 247; Lang v. Hitchcock, 99 Ill. 550.

It appears, therefore, from the record in this case, that said Walker, at the time of the execution by him of the respective chattel mortgages to Bowen, the appellant, containing the clause upon which the alleged equitable mortgage of a portion of said real estate is jiredicated, had no estate whatever in said premises, and that the only connection he had with it was as guardian of the estate of his infant daughter, said Mary Louise, in whom the legal title was vested as heir of her deceased mother.

But it is claimed on behalf of Bowen, the appellant, that the title subsequently acquired by Sidney P. Walker by the quitclaim deed of his said ward to him after she attained her majority, inured to the benefit of him, said Bowen. We can not concur in that view, for the following reasons: The after-acquired title could not inure by virtue of the statute, because there was no deed or conveyance from Sidney P. Walker to Bowen, purporting to convey an estate in fee simple absolute in any portion of the premises in question. It could not inure by way of estoppel by covenant, because there was no covenant appropriate to that end. Holbrook v. Debo, 99 Ill. 372.

Upon the whole case, we think the decree appealed from is supported by the evidence, is right, and should be affirmed.

Decree affirmed.

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McAllister, J.

The act entitled ec An act to protect mar-

ried women in their separate property,” went into force April 24, 1861. But before said act went into force, and in 1860, Sidney P. Walker intermarried with Josephine Spear, who was the owner in fee of the premises in question in this suit. Of that marriage only one child was bom, viz., Mary Louise Walker. But she was not born until after said act went into force, and December 21, 1863. Under that state of facts, the only estate which Sidney P. Walker had in his wife’s said real estate was that of a tenant during coverture; and she having died in the year 1864, such tenancy was thereby terminated. Rose v. Sanderson, 38 Ill. 247; Lang v. Hitchcock, 99 Ill. 550.

It appears, therefore, from the record in this case, that said Walker, at the time of the execution by him of the respective chattel mortgages to Bowen, the appellant, containing the clause upon which the alleged equitable mortgage of a portion of said real estate is jiredicated, had no estate whatever in said premises, and that the only connection he had with it was as guardian of the estate of his infant daughter, said Mary Louise, in whom the legal title was vested as heir of her deceased mother.

But it is claimed on behalf of Bowen, the appellant, that the title subsequently acquired by Sidney P. Walker by the quitclaim deed of his said ward to him after she attained her majority, inured to the benefit of him, said Bowen. We can not concur in that view, for the following reasons: The after-acquired title could not inure by virtue of the statute, because there was no deed or conveyance from Sidney P. Walker to Bowen, purporting to convey an estate in fee simple absolute in any portion of the premises in question. It could not inure by way of estoppel by covenant, because there was no covenant appropriate to that end. Holbrook v. Debo, 99 Ill. 372.

Upon the whole case, we think the decree appealed from is supported by the evidence, is right, and should be affirmed.

Decree affirmed.

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25 Ill. App. 549, 1887 Ill. App. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowen-v-mccarthy-illappct-1888.

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