John Blaine v Jane Harrison Lawsuit

Source: Reports Of Cases Illinois
Written: 1849

John L. Blain v. Jane Harrison.

Appeal from Adams.

1. Dower — inchoate right, not assignable. Dower is a right resting inaction
only, and can not be assigned. (1)

2. Same — release to bar. A widow may release her dower, so as to bar her from
asserting the right against the owner in fee, but she can not invest another
with it.(2)

3. Same — no release until apportioned. A widow can not release her right of
dower even to the owner in fee, until after it has been assigned to her. (3)

4. Same — unassigned, not subject to execution. Dower, before it is assigned,
can not be sold under an execution. (4)

5. Same — effect of wife joining in deed. A wife who joins with her husband in
a deed, is not a party to the deed, except for the purpose of releasing her
dower in the estate conveyed, and is not thereby estopped from setting up a
subsequent title.

6. Same — no release to separate from principal estate. A wife can not dispose
of her claim of dower, so as to separate it from the principal estate.

7. Same— husband's deed inoperative, not bar. A deed inoperative as to the
husband, will not operate to bar the right of dower. (5)

8. Same — not defeated by an equity. An equity can not be interposed to defeat
& right of dower.

9. Same — equitable relief as to, equitable defence. Where a widow applies for
equitable relief, as to her right of dower, she can not resist an equitable
defence, as against a purchaser for a valuable consideration, who was ignorant
of her claim.

This was a petition, filed by the appellee, on the 23d of March, 1847, in the
Adams circuit court, setting forth her marriage with Daniel Harrison, and his
decease; that during said marriage, her husband was the owner in fee simple of
divers parcels of real estate, describing it.

The petition recites that Wayman Crow and others, about the year 1842, in the
circuit court of Adams county, recovered a judgment against the said Daniel
Harrison and one Abraham Jonas, for the sum of $3,598; that afterwards, in
March, 1845, by virtue of an execution issued on said judgment, certain lands
(describing them) were sold and struck off to one Wayman Crow, and that the
time of redemption of said lands has expired; that divers other judgments were
also recovered against said Harrison, individually, and against him and said
Jonas; that John L. Blain, the appellee, and others, claim an interest in said
land, who were made parties to the petition; and prays an assignment of dower,
which she claims has not yet been assigned to her.

Blain and others answered, admitting the marriage of the petitioner, decease
of husband, etc.; and state that they are advised that appellee had not, at
the decease of her husband, any right of dower to the lands described in the
petition, described as having been sold under the aforesaid execution in favor
of Crow and others, and purchased by Crow, because her right of dower was
conveyed, transferred and disposed of, long before the death of her husband,
by a certain deed of mortgage, embracing the said property alleged to have
been sold to said Crow; which said mortgage was duly executed and acknowleged
by said Harrison and the appellee, his wife, with relinquishment of dower,
according to law.

At the June term, 1848, of Adams circuit court, Purple, judge, presiding, it
was ordered and decreed that the appellee was endowed of the lands in
question, and commissioners were appointed to assign her dower. The report of
the commissioners was afterwards confirmed by Minshall, judge. Blain, alone,
appealed, assigning for error, that decree was for the petitioner, when by law
it should have been for the appellant.

Williams & Lawrence, for appellant. Warren & Skinner, for appellee.

Caton, J. We do not deem it important, to look into the evidence to determine
whether or not the mortgage was properly executed and acknowledged by Mr.
Harrison, as our decision is based upon the supposition that it was so
executed and acknowledged. That mortgage, although purporting to be of the
entire estate, was in fact only of the right of redemption, for the mortgaged
premises had been previously sold to Crow, under the judgment in favor of
himself and others. From that sale, neither party ever redeemed, so that the
title to the estate became absolute in Crow; and the estate or right
mortgaged, was entirely extinguished, unless the mortgage can operate upon the
right of dower alone. After the expiration of the time for redemption, the
title of Crow related back to the time when his judgment became a lien upon
the premises, and then the mortgage was nothing more than it would have been
had the mortgagor himself previously conveyed by deed. The question, then, is,
can the wife release her dower, by joining her husband in a deed to one, while
he has previously conveyed his estate to another?

The right of dower in a married woman, is a mere intangible, inchoate,
contingent expectancy, and even in a widow, until it is assigned, it is no
estate in the land, but it is a right resting in action only, and it can not
be aliened. The widow may release her dower, so as to bar herself the right of
asserting it against the owner in fee, but she can not invest any one with it —
she alone can get it assigned. Seymore v. Mentun, 17 John. R., 167; Jackson
v. Aspill, 2 John. R., 412. A widow can not lease her right of dower before it
is assigned, even to the owner in fee. Croade v. Ingraham, 13 Pick., 33. It
can not be sold under an execution; and where that was done it was held to be
no satisfaction of the judgment. Gouch v. Atkins, 14 Mass., 378. So that
neither by the process of the law, nor by the voluntary act of the dowress
herself, can the right of dower be transferred, so as to vest the right to
have it assigned in another. If she can confer no right, she can not part with
any. She may release this right, it is true, but only so as to unite it with
the fee. If the law is so jealous of this right in a widow, where it has
become fixed and certain by the death of the husband, as to hold her incapable
of conveying it, with how much more reason may it forbid a wife from vesting
in another her right which is but a contingent expectancy. The former is
supposed to be under no restraint, and may, generally, do with her own as she
will; the latter is incapable of parting with a right, except in the
particular mode authorized by the law. But it is the nature of the right which
renders it incapable of alienation.

A wife who joins a deed with her husband, is not a party to the deed, except
for the purpose of releasing her dower in the estate conveyed by the husband,
and is not estopped from setting up a subsequent title. In Walker v. Griswold,
6 Pick., 417, the wife had joined in the execution of a mortgage, and the
court said: "the release was co-extensive with the mortgage; it extended no
further, and, consequently, the right of dower continued, subject only to that
incumbrance." When the incumbrance ceases as to the estate mortgaged, it
necessarily ceases as to the right of dower. When the deed from husband to
wife becomes inoperative as to the husband's estate, as being void for having
been made to defraud creditors, or where the purchase money is recovered back
for a defect of title in the husband, dower is not barred by the deed. Simson
v. Sumner, 9 Mass., 143; Robinson v. Bates, 3 Metcalf, 45. From the very
nature of the right, a wife can not dispose of her claim for dower, so as to
separate it from the principal estate. The policy of the law forbids it. If a
wife could alien her contingent claim for dower to one, while her husband
sells the fee to another, or retains it himself, it would lead to intolerable
embarrassments in the conveyance of estates. But we need not go to the common
law, or the decisions of courts, to find this rule. If any doubt could
otherwise be entertained, our own statute, we think, has settled the question.
By the common law, a wife could only release her dower by joining her husband
in levying a fine, when she was examined by the judges apart from her husband.
Our statute has substituted a simpler mode of accomplishing the same object;
and it is by our statute alone that a wife can release her dower in this
state. By sec. 21, chap. 24, R. S., it is provided that, "it shall and may be
lawful for any married woman to release her right of dower of, in, and to any
lands and tenements whereof her husband may be possessed or seized, by any
legal or equitable title during coverture, by joining such husband in the deed
or conveyance for the conveying of such lands and tenements, and appearing and
acknowledging the same," etc. The section then particularly prescribes the
manner in which her acknowledgment shall be taken and certified; and, in
conclusion, provides, that the deed thus acknowledged, when recorded, "shall
be sufficient to discharge and bar such women to dower in the lands and
tenements conveyed by such deed or conveyance." In this the intention of the
legislature is manifest, to pursue the policy of the common law, and not allow
the wife to alien her right of dower, so as to separate it from the principal
estate. By this statute, dower is not barred in the lands and tenements
described in the deed; but in such only as are conveyed by such deed. If the
deed is void, or becomes inoperative as to the husband, or conveys no lands or
tenements for want of title in him, then it is not allowed to operate so as to
bar the right of dower in the wife. Such is the unquestionable rule of law;
but it may be said that in a court of equity, effect should be given to her
transfer or release of this legal claim, by treating her as trustee, and
allowing the assignee to use her name to have the dower assigned for his
benefit. But the very admission that the assignee must use her name in a court
of equity, shows that he has no right which equity will recognize; for in this
court, a party who has a right may assert it in his own name. Besides, this
would be equally against the policy of the law and the provisions of the

Although courts of equity have a concurrent jurisdiction with courts of law,
in the assignment of dower, yet, in the exercise of that jurisdiction, they
always treat it as a strictly legal right, and are governed by the same rules
of right by which the courts of law are controlled, and will not allow an
equity to be interposed to defeat the dower. Mundy v. Mundy, 4 Bro. Ch. R.,
298; 2 Ves., jr., 122; 1 Story's Eq., sec. 624. Dower is favored as well in
law as in equity. 1 Story's Eq., sec. 626; Curies v. Curtes, 2 Bro. Ch. R.,
620. In vindicating courts of equity in rejecting an equitable defense in such
cases, judge Story says: "it is admitted that dower is a mere legal right, and
that courts of equity, in assuming a concurrent jurisdiction with courts of
law upon the subject, professedly act upon legal principles." Story's Eq.,
sec. 630. Whether the same rule would obtain where the widow, under our
statute, was asserting a right of dower in premises to which her husband had
only had an equitable title, it is unnecessary now to say. Where the widow
applies for equitable relief, which a court of law could not grant, as the
removal of terms, etc., then she can not resist an equitable defence, as
against a purchaser for a valuable consideration, in ignorance of the existing
claim of dower. 1 Roper's Law of Baron and Feme, 446-7. In this case, the
widow is seeking to enforce her strictly legal right; asking no equitable
relief, and none which could not be granted by a court of law; and we can not
listen to a defence which would not be available in a court of law. As the
husband only owned a right of redemption, that was all that passed, or was
incumbered by the mortgage, and to no greater extent was the dower released.
That right was suffered to expire by the lapse of time, when the mortgage
became inoperative; and when it ceased to be a conveyance of the husband's
estate, it could no longer operate upon the wife's dower. As the mortgagees
take no estate in which the widow had a right of dower, they acquired no such
right from her. She does not ask to have dower assigned in any estate vested
in them by the mortgage which she executed, but in the estate vested in Crow,
by virtue of a previous sale, under a judgment and execution; which it is not
pretended could affect her dower. Crow took the estate subject to her right of
dower, and now makes no objection to her claim.

One of the defendants in his answer says, that he is the assignee of a bond,
given by the husband in his life time, for a deed *for [*389] a portion of the
premises in which dower is claimed, not embraced in the mortgage; but even
admitting that the wife could have barred her dower by joining in that bond,
as there is no pretence that she did, it presents no impediment to the relief
which she asks.

The decree of the circuit court is affirmed, with costs.

Decree affirmed.

Followed — Summers v. Babb, 18 Ill., 433; Qualified — Chicago Dock Co. v.
Kinzie, 49 Ill., 289; Cited — Osborn v. Horine, 19 Ill., 124; Gove v. Cather,
23 Ill., 634; Bailey v. West, 41 Ill., 290; Newman v. Willetts, 48 Ill., 584;
Johnson v. Montgomery, 51 Ill., 185; Morton v. Morton, 57 Ill., 176; Hoppin v.
Hoppin, 96 Ill., 265.

(1) Re-affirmed, Summers v. Babb, 13 Ill., 483.

(2) So, also, in Johnson v. Montgomery, 51 Ill., 185. A widow can not be
divested of her dower right, on principle or under statute, nor can it be
destroyed in any way save by the act of the woman according to the provisions,
forms and requirements of positive law, Gove v. Cather, 23 Ill., 634. By
signing her husband's deed the wife joins in it and if properly examined and
the certificate of her acknowledgment be in due form, her dower will be
barred, non obstante her name no where else appears in the body of the deed,
Johnson v. Montgomery, 51 Ill., 185. The former owner of the fee of land in
which a dower right still exists, if he has conveyed the same with warranty,
may purchase the right for the benefit of his grantees, however remote, La
Framboise v. Grow, 56 Ill., 197, and the wife can relinquish it to the grantee
of her husband, but, only in the mode prescribed by statute, Martin v.
Hargardine, 46 Ill., 322; that is, the dower may be released to the owner of
the fee or to a person in privity with the estate, who can not assert the
dower right against the owner of the fee. Hence, a tenant of the freehold, an
equitable owner, a purchaser from the owner of the fee, although his contract
be executory, or one who has warranted the title, may become the releasee of
the dower right, Chi. Dock Co. v. Kinzie, 49 Ill., 289. See as to the effect
of divorce on the dower right, Clark v. Lott, 11 Ill., 105, note 1. See, that
a married woman can be divested of rights in realty only in statutory mode,
Mason v. Brock, 12 Ill., 273, note 1.

(3) A widow can not convey her dower before assignment to any person but the
owner of the fee, Bailey v. West, 41 Ill., 290; Robbins v. Kinzie, 45 Ill.,
354; may release to the feeholder but not transfer to a stranger, Summers v.
Babb, 13 Ill., 483.

(4) So in Newman v. Willetts, 48 Ill., 534, also re-affirmed in Summers Babb,
13 Ill., 483. So the right of dower is not debarred by a mortgage the wife did
not execute, Gold v. Ryan, 14 Ill., 53. Nor is it affected by a lien in favor
of mechanics, Schaeffer v. Weed, 3 Gilm., 511, nor by alienation under a
decree enforcing such a lien, Gove v. Gather, 23 Ill., 634.

(5) Although a wife join her husband in conveying lands if that conveyance be
set aside, as fraudulent, at the instance of creditors and the land is sold
and conveyed, under decree, for the benefit of such creditors, after the death
of the husband the widow will have dower in these lands, Summers v. Babb, 13
Ill., 483; so she will take if the deed be inoperative whether by reason of
being thus in fraud of creditors, or because of a prior lien or incumbrance,
or where the purchase money is recovered back for defect of title in the
husband, or where the deed becomes inoperative by reason of any wrongful act
of the husband, Morton v. Noble, 57 Ill., 176; aliter, where the husband and
wife convey a perfect and indefeasible estate which is subsequently lost by
the fault or neglect of grantee, Morton v. Noble, 57 Ill., 176. But, where a
widow and heirs borrowed money to pay debts against the estate of the late
husband and father and, to secure the same and debts against the estate, gave
deeds of trust and a mortgage with covenants of warranty against all
incumbrances and afterward, on bill filed by a creditor, for himself and
others in like predicament, the debt owing by the estate was declared a lien
upon the lands embraced in the trust deeds and mortgage and the lands ordered
sold for the payment of all the debts, including those secured, the decree not
setting the securities aside but only depriving them of priority and the lands
were sold, the release of dower by the widow was not made inoperative so as to
restore the right against the grantee in the deeds of trust, who purchased,
under the decree, for the benefit of the parties secured by the deeds of trust
and mortgage, Hoppin v. Hoppin, 96 Ill., 265.

pages 293-297

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar.

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