Hart v. Burch

6 L.R.A. 371, 130 Ill. 426

• Court: Illinois Supreme Court
• Decided: October 31, 1889
• Status: Published

Opinion

Mr. Chief Justice Shope

delivered the opinion of the Court:

The principal question arising upon this record is, whether the quitclaim deed of August 29, 1886, from Lucy A. Burch, appellee, to appellant, operated to release her dower in the lands of which her husband died seized. It is not questioned that this deed was in every way sufficient for that purpose, if the grantee therein stood in such relation to the estate that a release thereof to him would unite the dower with the fee. Upon the death of her husband, Wesley B. Hart, appellee’s right of dower in the undivided one-eleventh part of the land of which David Hart died seized, and of which her husband died seized as tenant in common with his brothers and sisters, became consummate, and the right of action accrued to her to have the same assigned. The right of dower, when consummate, is, before assignment, a right resting in action only. It can exist only in the person upon whom it is cast by operation of law, and a deed or conveyance of it will pass no title, and can only be effective as a release and extinguishment of the right. Such right of dower is not the subject of transfer or sale, and can not be released to one not in privity with the title under which the dowress claims. Washburn on Real Prop. 247, 252, 301; 1 Scribner on Dower, 478; Summers v. Babb, 13 Ill. 483; Chicago Dock Co. v. Kinzie, 49 id. 289; Reiff v. Horst, 55 Md. 42; Kitzmiller v. Van Rensalear, 10 Ohio St. 63.

While it is not necessary that the releasee should hold the fee, yet he must be the legal or equitable owner of the title, or stand in such relation thereto that the dower right, upon execution of the release, will unite with the fee. An attempted conveyance to one not standing in such privity is ineffectual to release dower.

Some months before the execution of the deed by the dow-ress, a considerable portion of the land had been sold at the master’s sale, under the decree in partition, to strangers, and the deeds confirmed. Afterward, but still before the making of the deed by the dowress, the residue of the land was sold by the master in chancery, in further execution of the decree in partition, to appellant, but no report of the sale had been made or confirmation thereof had, nor a conveyance by the master made, until some months after the execution of the deed by the dowress to appellant. Did appellant, by virtue of his purchase at the master’s sale, acquire such interest in the land as would enable him to take a release of dower ? It is clear he did not as to all that portion which had previously been sold to others. The title to so much had passed into others with whom he had no connection. Whatever right he may have had in these lands had been extinguished by the sale, and the deeds made in pursuance thereof. Nor did he stand in the relation of warrantor in the chain of title, so as to bring him within the rule that a warrantor may purchase in the dower outstanding, and thus relieve himself from liability upon his covenants of warranty.

In respect of the portion purchased by appellant, it is contended that although the sale was not complete until approved, he was nevertheless the equitable owner of the title, and might purchase in the dower of appellee. This, we think, is an erroneous view. It is true, that the release may be made to the equitable owner of the land, for'he could not assert it against the fee owner, but upon its release to him would become merged and extinguished. The difficulty here lies, not in ascertaining the rule of law, but in the relation appellant sustained to the title by virtue of his purchase.

A sale by a master in chancery, or other person authorized to execute the decrees in chancery, is not, until confirmed by the court, a sale, in a legal sense. Until confirmed, the bargain is incomplete, and confers no right in the land upon the purchaser. “Until then,3’ says Mr. Bohrer, (Judicial Sales, sec. 124,) “it is a sale only in the popular sense, and not a legal or judicial sense. The chancellor has a broad discretion in the approval or disapproval of such sale. The accepted bidder acquires, by the mere acceptance of his bid, no independent right * * * to have his purchase completed, but is merely a preferred proposer, until confirmation of the sale by the court, as agreed to by its ministerial agent.” (See Young v. Keogh, 11 Ill. 642; Ayres v. Baumgarten, 15 id. 444 ; Rawlings v. Bailey, id. 178; Bussy v. Hardin, 2 B. Mon. 407; Hay’s Appeal, 51 Pa. St. 58.) In the case last cited the court says: “Even the highest bidder, whose bid has been returned to the court as the best offered, has acquired no right which debars the heirs or their counsel from endeavoring to have his bid rejected and a re-sale ordered. His bid, though the highest, was but an offer to purchase, subject to the approval or disapproval of the court, and in approving sales made in partition, it is the duty of the court to regard primarily the interest of the heirs.”

But if the authorities were not comparatively uniform in this respect, it would seem no doubt would remain upon reading the statute of this State in respect thereto. (Secs. 29 and 30, chap. 106, Bev. Stat.) It will be seen that the matter of the sale and purchase is left in fieri until the court shall render its order of approval. Confirmation is final consent, and the court, being in fact the vendor, may consent, or not, in its discretion. (Bohrer on Judicial Sales, secs. 122-132.) The purchaser therefore acquires ho interest in or right to the land, and being a mere offerer to purchase, stands in no such relation to the title that a purchase in of a dower interest therein would unite it with the fee. It follows that appellant, by virtue of his purchase at such master’s sale, acquired no such interest in the land as would enable him take a release of dower.

It is also urged, that appellant was owner, as tenant in common with the other , heirs-at-law of David Hart, deceased, of an undivided interest in all the land set off to Mrs. Elizabeth Hart, widow of said David, for her dower, as well as in all the land of which said David died seized. It is true that appellant owned the undivided one-eleventh of all of said land as tenant in .common with his brothers and sisters, or the heirs of such as were deceased. The children and heirs-at-law of Wesley B. Hart, also, as representing their father’s share, were seized of a like interest in common.

It is said that appellant, as tenant in common in said lands, might purchase in the outstanding dower of the widow of said Wesley B. Hart, deceased. It may readily be conceded that one tenant in common may buy in an outstanding incum-brance or right of dower affecting the common estate, and may compel contribution therefor from his co-tenants, and still this contention remain entirely groundless in this case. Bach tenant in common was here seized of the undivided one-eleventh part of the estate, subject to the dower of the widow of their father, David Hart, which, as we have seen, was assigned in this proceeding, leaving the residue unincumbered thereby. Wesley B. Hart, one of the tenants in common, died, leaving children, to whom his interest descended, incumbered by the dower of his widow. The dower right arose, by operation of law, upon the seizin of the husband, and accompanied and was dependent upon the estate of the husband in the land, and was an incumbrance upon the share or interest to which he had title, and none other. No claim or right of dower in the widow of Wesley B. attached to the share or portion of any of his co-tenants. The only unity required between tenants in common is that of possession. (2 Cruise’s Digest, tit. 20, 2.) One tenant in common may hold in fee simple and another for life; one may hold by descent and another by purchase. Thus it is that tenancies in common descend to the heirs of each tenant, because they have several freeholds and not an entirety of interest. (Ibid. 8.) And it has been held that a widow, having dower in the common estate, may release to one tenant in common for his share, without releasing her dower to another tenant in common who has a different share. White v. White, 1 Harr.. 202.

Dower, under our statute, is assignable by metes and bounds when the land is susceptible of division without manifest prejudice to the parties in interest; but there is no provision, in terms, for the assignment in lands held in common, and in determining the mode of assignment, where partition between the tenants in common is not made, resort must be had to the rules of the common law. At common law the widow was entitled to have assigned to her one-third of the lands and tenements of which she was dowable, to be set out by metes and bounds, where it was practicable. Such is the widow’s common law right. When the property did not admit of an assignment of dower in severalty, either from the nature of the husband’s interest in it or from the quality of the thing itself, the assignment by metes and bounds was necessarily dispensed with. “Thus, if the husband be seized in common, or in co-parcenary, and die without partition, the widow can not have her dower assigned by metes and bounds, but shall have the third part of the share of her husband, to hold in common with the heir and the other tenants.” (Co. Litt. 32 b; Scribner on Dower, 80; Sutton v. Rolfe, 3 Lev. 84.) In cases where the widow was entitled to dower of a part or portion held as tenant in common, the dower must be assigned in common. She being entitled, pro tanto, of her husband’s estate, can not have it otherwise than her husband had it. (Cruise’s Digest, tit. 6, chap. 3, sec. 10, and tit. 20, sec. 25.) That is, she being by the statute endowable of the lands of which her husband died seized, is let into the estate as he possessed it as his decease, and not otherwise;—so that, the dower of his mother having been assigned, the heirs of Wesley B. Hart held in common one-eleventh of the residue, subject to the dower of appellee therein, and she would be entitled to one-third of one-eleventh for her life in common, and the heirs-at-law of Wesley B. Hart to two-thirds of one-eleventh thereof during the continuance of her life estate. In case of partition, as we have seen, such dower interest would follow the portion assigned to 'the heirs of Wesley B. Hart. See, also, French v. Lord, 69 Me. 536.

It must be apparent that this dower right was not an in-cumbrance upon the estate held in common. Appellant had no interest in, or right (legal or equitable) to, the undivided portion of the land out of which appellee’s dower arose and upon which it was alone dependent. A conveyance to him would, therefore, no more unite it with the fee vested in the heirs-at-law of Wesley B. Hart, than would a conveyance to any stranger to the title.

It is also insisted, that relief was improperly granted without the filing of an original hill by appellee, to which the purchasers at the first sale were made parties. The original bill filed by appellant, by apt averment set out the dower interest of appellee, and prayed for its assignment, and which were ample upon which to base the decree. The fund derived from the sale was in the control of the court, for distribution'; and although she had not been served, and the cause had proceeded to decree and sale without further notice of her dower right, yet appellee, while the court had jurisdiction, came into court, consented to the decree and sale, and elected to take her dower interest in money. The land had been reported not susceptible of division. There is no pretense the land had not sold for it's full value, and we can see no impropriety in the decree rendered. Nor were the purchasers at the first sale at all necessary parties. It would have been inequitable to have burdened them with the expense of independent litigation. By the decree rendered, their interests are in no way affected.

Finding no error in the record, the decree is affirmed.

Decree affirmed.