Mr. Justice Craig
delivered the opinion of the Court:
This was a bill of review brought by Wm. A. and John M. Jackson against John Jackson and others on the 20th day of August, 1890, in which the complainants sought to review and vacate a decree in a partition proceeding rendered on the 6th day of April, 1883, in the Circuit Court of Stark county.
The facts out of which the litigation arose may be briefly stated.
John Jackson and Paulina A. Jackson were married on the 14th day of October, 1858, and the following named children were born to them :
Lydia E. Jackson, born June 15, 1859.
Laura B. Jackson, born October 24, 1860.
William A. Jackson, born October 23, 1862.
Ursula A. Jackson, born October 7, 1864.
John M. Jackson, born August 25, 1866.
On the 13th day of March, 1860, Paulina A. Jackson became seized in fee of the west half of the N. E. ¼ of See. 2,12 N., 5 E., in Stark county, and on the 4th day of January, 1873, she became seized of forty acres, part of the N. W. ¼ of Sec. 2, in the same township, more particularly described in the petition for partition.
On the 29th day of November, 1875, Mrs. Jackson died, leaving her husband, John Jackson, and her four children surviving her. On the 31st of August, 1882, the two daughters, Laura B. and Lydia, together with their husbands and William A. Jackson, who was then a minor, filed a petition for partition of the premises involved against John Jackson and the other two heirs. John Jackson answered the bill claiming an estate of tenancy by the curtesy in the premises.
On the hearing at the March term, 1883, of the court, the court found :
That John Jackson had an estate in curtesy in all of said premises, and was in possession thereof. That the foregoing named children of Paulina A. Jackson are “the owners in common of said premises, subject to life estate by the curtesy of' John Jackson.”
A decree was rendered, ordering partition of the premises subject to the life estate, and Samuel M. Adams, Benjamin R. Brown and Charles Potter were appointed to make such partition, and if not subject to division, to appraise and report the same.
The case was continued from term to term without further action until the March term, 1888, when said commissioners reported:
That they had examined the premises and find that they are not susceptible of division without prejudice to parties, and appraise the W. ½ N. E. 2, at $60 per acre, and the forty-acre tract at $55, both, however, subject to the life estate of John Jackson.
At the March term, 1889, the cause was dismissed.
It is first contended by appellee that there is no such error appearing on the face of the decree as will authorize a court of equity to interfere by bill of review. If there has been an erroneous application of the facts found by the decree a court of equity may revise or reverse the decree by bill of review. Evans v. Clement, 14 Ill. 208. The facts upon which the court found that John Jackson was entitled to hold the premises as tenant by curtesy, all appear on the face of the decree.
The date of the purchase of the lands by Paulina A. Jackson, with their description, date of her marriage, date of the birth of her children, and date of her death, all appear on the face of the decree. If, therefore, the decree under the facts as found, was erroneous, it could be corrected. The next question presented is, whether the complainants or either of them have lost their right to bring this bill, by lapse of time. As has been seen, the decree was rendered on the 6th day of April, 1883, and this bill was brought on the 20th day of August, 1890. Ho time has been prescribed by statute within which a bill of review must be brought, but writs of error are required to be sued out within five years from the time a judgment or decree has been rendered; and in analogy to the time prescribed for prosecuting writs of error, it has been held that a bill of this character should be brought within the time allowed for suing out a writ of error. Lyon v. Robbins, 46 Ill. 278. In case of writ of error, see. 86, chap. 110, of our Practice act, prescribes, that a writ of error shall not be brought after the expiration of five years from the rendition of the decree or judgment, but if the party entitled to the writ was an infant when the judgment was entered, the time of minority shall be excluded from the five years. Applying this rule to the present case, which we think should be done, John M. Jackson, one of the compainants, as found by the court in its decree, was born August 25, 1866, he would not, therefore, be of age until August 25,1887, and, excluding his minority, he would have until August 25,1892, to bring his bill, and the bill was filed two years before the time expired. So far, therefore, as John M. Jackson is concerned, his bill was brought in apt time. As respects the other complainant, he occupies a different position; he, as appears, became of age in October, 1883, and hence would be barred in October, 1888. It is, however, said that the time did not begin to run until the suit was finally disposed of in March, 1889. We do not concur in that view. The rights of all the parties as to their title and interest in the premises were fully and definitely determined and settled by the decree of April 6, 1883. That was a final decree and as to all persons who were parties to the proceeding, and under no disability, the decree could not be reviewed by writ of error or bill of review after five years, and the fact that the cause remained on the docket until 1889, and was then stricken from the docket, does not materially affect the question. The decree of April 6, 1883, was the only one ever entered in the case and there was nothing to prevent a writ of error from being prosecuted to review the decree at any time after it was rendered, for the period of five years.
We now come to a consideration of what may be regarded the merits of the case. That is, whether John Jackson was entitled to an estate of tenant by the curtesy in the premises. At common law, “ When a man marries a woman seized at any time during coverture of an estate of inheritance, * * * and hath issue by her, born alive, and which might by possibility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the land during his life by the curtesy of England.” 4 Kent, page 27; Shortall v. Hinckley, 31 Ill. 219. There are four things necessary to constitute the tenancy by the curtesy : marriage, seizin of the wife, issue, and death of the wife. Here all of these facts existed, and it is plain at common law John Jackson would have an estate by the curtesy in the lands. It may also' be remarked in this connection that, under the common law, there were two interests which, under the marriage relation, a husband might acquire in the lands of the wife. First, by virtue of the marriage alone the husband possessed the right to occupy the lands of which the wife was seized and receive the rents and profits during coverture.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Craig
delivered the opinion of the Court:
This was a bill of review brought by Wm. A. and John M. Jackson against John Jackson and others on the 20th day of August, 1890, in which the complainants sought to review and vacate a decree in a partition proceeding rendered on the 6th day of April, 1883, in the Circuit Court of Stark county.
The facts out of which the litigation arose may be briefly stated.
John Jackson and Paulina A. Jackson were married on the 14th day of October, 1858, and the following named children were born to them :
Lydia E. Jackson, born June 15, 1859.
Laura B. Jackson, born October 24, 1860.
William A. Jackson, born October 23, 1862.
Ursula A. Jackson, born October 7, 1864.
John M. Jackson, born August 25, 1866.
On the 13th day of March, 1860, Paulina A. Jackson became seized in fee of the west half of the N. E. ¼ of See. 2,12 N., 5 E., in Stark county, and on the 4th day of January, 1873, she became seized of forty acres, part of the N. W. ¼ of Sec. 2, in the same township, more particularly described in the petition for partition.
On the 29th day of November, 1875, Mrs. Jackson died, leaving her husband, John Jackson, and her four children surviving her. On the 31st of August, 1882, the two daughters, Laura B. and Lydia, together with their husbands and William A. Jackson, who was then a minor, filed a petition for partition of the premises involved against John Jackson and the other two heirs. John Jackson answered the bill claiming an estate of tenancy by the curtesy in the premises.
On the hearing at the March term, 1883, of the court, the court found :
That John Jackson had an estate in curtesy in all of said premises, and was in possession thereof. That the foregoing named children of Paulina A. Jackson are “the owners in common of said premises, subject to life estate by the curtesy of' John Jackson.”
A decree was rendered, ordering partition of the premises subject to the life estate, and Samuel M. Adams, Benjamin R. Brown and Charles Potter were appointed to make such partition, and if not subject to division, to appraise and report the same.
The case was continued from term to term without further action until the March term, 1888, when said commissioners reported:
That they had examined the premises and find that they are not susceptible of division without prejudice to parties, and appraise the W. ½ N. E. 2, at $60 per acre, and the forty-acre tract at $55, both, however, subject to the life estate of John Jackson.
At the March term, 1889, the cause was dismissed.
It is first contended by appellee that there is no such error appearing on the face of the decree as will authorize a court of equity to interfere by bill of review. If there has been an erroneous application of the facts found by the decree a court of equity may revise or reverse the decree by bill of review. Evans v. Clement, 14 Ill. 208. The facts upon which the court found that John Jackson was entitled to hold the premises as tenant by curtesy, all appear on the face of the decree.
The date of the purchase of the lands by Paulina A. Jackson, with their description, date of her marriage, date of the birth of her children, and date of her death, all appear on the face of the decree. If, therefore, the decree under the facts as found, was erroneous, it could be corrected. The next question presented is, whether the complainants or either of them have lost their right to bring this bill, by lapse of time. As has been seen, the decree was rendered on the 6th day of April, 1883, and this bill was brought on the 20th day of August, 1890. Ho time has been prescribed by statute within which a bill of review must be brought, but writs of error are required to be sued out within five years from the time a judgment or decree has been rendered; and in analogy to the time prescribed for prosecuting writs of error, it has been held that a bill of this character should be brought within the time allowed for suing out a writ of error. Lyon v. Robbins, 46 Ill. 278. In case of writ of error, see. 86, chap. 110, of our Practice act, prescribes, that a writ of error shall not be brought after the expiration of five years from the rendition of the decree or judgment, but if the party entitled to the writ was an infant when the judgment was entered, the time of minority shall be excluded from the five years. Applying this rule to the present case, which we think should be done, John M. Jackson, one of the compainants, as found by the court in its decree, was born August 25, 1866, he would not, therefore, be of age until August 25,1887, and, excluding his minority, he would have until August 25,1892, to bring his bill, and the bill was filed two years before the time expired. So far, therefore, as John M. Jackson is concerned, his bill was brought in apt time. As respects the other complainant, he occupies a different position; he, as appears, became of age in October, 1883, and hence would be barred in October, 1888. It is, however, said that the time did not begin to run until the suit was finally disposed of in March, 1889. We do not concur in that view. The rights of all the parties as to their title and interest in the premises were fully and definitely determined and settled by the decree of April 6, 1883. That was a final decree and as to all persons who were parties to the proceeding, and under no disability, the decree could not be reviewed by writ of error or bill of review after five years, and the fact that the cause remained on the docket until 1889, and was then stricken from the docket, does not materially affect the question. The decree of April 6, 1883, was the only one ever entered in the case and there was nothing to prevent a writ of error from being prosecuted to review the decree at any time after it was rendered, for the period of five years.
We now come to a consideration of what may be regarded the merits of the case. That is, whether John Jackson was entitled to an estate of tenant by the curtesy in the premises. At common law, “ When a man marries a woman seized at any time during coverture of an estate of inheritance, * * * and hath issue by her, born alive, and which might by possibility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the land during his life by the curtesy of England.” 4 Kent, page 27; Shortall v. Hinckley, 31 Ill. 219. There are four things necessary to constitute the tenancy by the curtesy : marriage, seizin of the wife, issue, and death of the wife. Here all of these facts existed, and it is plain at common law John Jackson would have an estate by the curtesy in the lands. It may also' be remarked in this connection that, under the common law, there were two interests which, under the marriage relation, a husband might acquire in the lands of the wife. First, by virtue of the marriage alone the husband possessed the right to occupy the lands of which the wife was seized and receive the rents and profits during coverture. Second, upon the birth of a child capable of inheriting, the husband became invested with an estate in the lands which, during the life of the wife, was denominated initiate and upon her death it became consummate. There is, however, but little or no dispute between counsel in regard to the rules of the common law on the subject, but the question in dispute is how far and to what extent the common law has been changed and modified by our statute. In 1861 the legislature passed an act known as the Married Woman’s act, which provides, “ That all the property, both real and personal, belonging to any married woman as her sole and separate property, or which any woman hereafter married owns at the time of her marriage, or which any married woman during coverture acquires in good faith from any person, other than her husband, by descent, devise, or otherwise, together with all the rents, issues, increase and profits thereof, shall, notwithstanding her marriage, be and remain during coverture her sole and separate property, under her sole control, and be held, owned, possessed and enjoyed by her the same as though she was sole and unmarried.”
In 1874 the legislature passed an act to revise the law in relation to dower, the first section of which provides as follows :
“ That the estate of curtesy is hereby abolished, and the surviving husband or wife shall be endowed of the third part of all the lands whereof the deceased husband, or wife, was seized,” etc. Under the act of 1861, and the Dower act of 1874, it is claimed that Jackson was only entitled to dower in the lands. It will be observed that Paulina A. Jackson acquired the eighty-acre tract of land in 1860, before the act of 1861 was passed; that she was married in 1858, issue born capable of inheriting in 1859, and also in 1860. As to this tract of land Jackson had an estate as tenant by the curtesy initiate before the act of 1861 was passed. This was.a vested estate, one which Jackson, had he desired, might have conveyed, and one, too, which might have been sold on execution against him. Shortall v. Hinckley, supra; Mettler v. Miller, 129 Ill. 640. As the estate of Jackson was a vested estate before the act of 1861 was passed, it was not within the power of the legislature to destroy it or deprive him of it by any act that might be passed for that purpose. Rose v. Sanderson, 38 Ill. 247. As to the eighty-acre tract of land, we think the decision of the court was correct.
The forty-acre tract stands upon a different footing. That tract was acquired by Mrs. Jackson in 1873, when the act of 1861 was in full force. Under that act Jackson was precluded from acquiring any estate whatever in the land during coverture. It was, during coverture, the sole and separate property of the wife, and she alone was entitled to the rents, issues and profits thereof. Cole v. Van Riper, 44 Ill. 64. As Jackson, therefore, in 1874, his wife being still alive had no vested estate in the land, the legislature had the undoubted right to abolish the estate of curtesy, as to him and all others who were alike situated, and provide, as it did, that a surviving husband or wife shall only be entitled to dower. This view is fully sustained by the late case of McNeer v. McNeer et al., 142 Ill. 388. There is nothing in Cole v. Van Riper, supra, holding that the husband has any vested estate in the lands of the wife acquired after the passage of the act of 1861, before the death of the wife. Before the death of the wife he has no estate by curtesy, either initiate or consummate. The fact that the husband might, after the death of the wife, become vested with an estate as tenant by the curtesy, did not stand in the way of the legislature abolishing that estate at any time before the estate became vested. As to the eighty-acre tract the decree of the Circuit Court will be affirmed, but as to the forty-acre tract the decree will be reversed and the cause remanded.
Appellants will recover costs.
Reversed and remanded.