Hoppin v. Hoppin

Citations

• 96 Ill. 265
• 1880 Ill. LEXIS 28

Syllabus

<p>1. Dower—release in trust deed. A widow and heirs borrowed money with which to pay debts against the estate, and to secure the same and a debt against the estate, they gave deeds of trust, and a mortgage containing a covenant of warranty against all incumbrances, and afterwards, on bill filed by a creditor on behalf of himself and other creditors, the debts owing by the estate were declared a lien upon the lands embraced in the trust deeds and mortgage, and the lands were ordered to be sold for the payment of all the debts, including those secured by the trust deeds and mortgage, the decree, however, not setting aside those instruments, but only depriving them of any priority of lien in exclusion of the creditors of the estate, and the lands were sold as decreed: Held, the sale under the decree did'not render the widow’s release of dower in the trust deeds and mortgage inoperative, and restore her. dower as against the grantee in the deeds of trust who became the purchaser under the decree for the benefit of the parties secured by the trust deeds and mortgage.</p> <p>2. Same—estoppel by covenant of warranty. Where a deed of trust is made by a widow in connection with the heirs of an estate, to secure a debt due from the estate and money borrowed to pay other debts, the deed containing a covenant of warranty against all incumbrances, this will operate to estop the widow from afterwards setting up a claim to dower in the same lands as against parties claiming title under the trust deed, and the fact that the lands have been also sold under a decree of court for the benefit of all the creditors of the estate, placing the debts secured by the trust deed upon an equal footing with the other debts of the estate, will not prevent the application of this rule.</p>