Hart v. Burch

Citations

• 130 Ill. 426
• 6 L.R.A. 371

Syllabus

<p>1. Dower—when the right becomes consummate—in respect to an estate in common. A died seized of lands, leaving a widow and eleven children, after which one of his sons died, leaving a widow and children: Held, that upon the death of such son his widow’s right of dower in the undivided one-eleventh part of the land of which the first party died seized, and of which her husband died seized as a tenant in common with his brothers and sisters, became consummate, and the right of action accrued to her to have the same assigned.</p> <p>2. Same—nature of the right before assignment—and to whom transferable.' The right of dower, when consummate, is, before assignment, a right existing 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.</p> <p>3. 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 the execution of the release, will unite with the fee.</p> <p>4. In a proceeding for the partition of land between the tenants in common, in which the widow of one of the co-tenants was not served with process and had not appeared, certain of the lands were sold under the decree of the court. After such sale, and before its confirmation, the purchaser, who was one of the contestants, procured a release or quitclaim deed from the dowress: Held, that such deed or release was void, for the reason that the purchaser had no title, legal or equitable, in the lands.</p> <p>5. Same—tenancy in common—and herein, of the mode of assigning dower in an estate held in common. The dower of a widow of one of several tenants in common is an incumbrance upon t