Best v. Jenks

Citations

• 123 Ill. 447
• 15 N.E. 173

Syllabus

<p>1. Partition by parol—as vesting title—limitation. A parol partition of one hundred and fifty acres of land was made between a brother and sister, which was acquiesced in by all the parties interested therein. The sister took possession of the part assigned to her, in 1845, but afterward sold twenty acres. Prom 1845, to her death, in 1880, (a period of thirty-five years,) she claimed to be the owner of the fifty-five acres, and occupied the premises in pursuance of the parol partition: Held, that she was the owner of the same at her death, and that her husband was entitled to dower in the same.</p> <p>2. D over—whether subject to sale and tramsfer before assignment. The right of dower is a mere intangible, inchoate, contingent expectancy, and until assigned it is no estate in the land, but is a right existing in action only, and it can not be aliened. It may be released in favor of the owner of the fee, but it can not be invested in another separately from the fee. Only the person entitled to dower under the law, can have it assigned.</p> <p>3. Same—sale on partition, by consent—who may give the consent. Pending a suit for the partition of land, the party entitled to dower and homestead, who was also an heir to one-half of the land, sold and conveyed to a third person all his interest in the premises, and the latter was made a party complainant. After a decree for partition, and the report that the dower and homestead could not be set off or partition made, the purchaser filed his written consent to the sale of the dower and homestead interest, and agreed to take the value thereof in money, and an order was made for a sale free of the dower: Held, that the order of sale was erroneous. The purchaser having no title to the dower, his written consent could not operate to give the purchaser at the master’s sale a title free from the dower. The party entitled to dower by law, alone could give such consent.</p> <p>4. Homestead—whether alienable before assignment—right