Montague v. Selb

Citations

• 106 Ill. 49
• 1883 Ill. LEXIS 141

Syllabus

<p>1. Estoppel—asserting rights at different times, inconsistent in their character, and to cut off a preexisting right in another. On petition for dower and homestead by the widow of a former owner of certain premises, it appeared the defendant held the premises as purchaser at the sale thereof by the administrator of such former owner, under an order of court obtained for that purpose. Prior to the sale by the administrator, a mortgage on the same premises, which had been executed by the intestate in his lifetime, and in which the rights of dower and homestead were released, had been foreclosed, and the certificate of purchase executed thereunder was assigned to the defendant, the purchaser at the administrator’s sale. These facts were set up in the answer of defendant, who contended the widow’s rights of dower and homestead should be subjected to the condition that she contribute, pro rata, to the amount paid out by him in acquiring the certificate of purchase issued in the foreclosure proceeding, and so it was ruled in this court, reversing the decree of the trial court and remanding the cause. Upon the remandment, the defendant, in a supplemental answer, set up that since the original hearing he had obtained a deed ujion his certificate of purchase, claiming thereunder adversely to the petitioner, and that she was thereby barred of any right of dower or homestead. It was held, that inasmuch as the defendant, on the first hearing, only asked that the petitioner make contribution, thereby, in effect, representing that redemption had been made from the mortgage sale, he would be equitably estopped to afterward assert a claim adverse to the widow’s rights, whereby, from lapse of time, she would have lost her right to protect her interests by making redemption herself, and also barred from securing her rights by making contribution.</p> <p>2. Tenancy in common—widow’s homestead and estate of heirs, or title of purchaser of inheritait.ce. Where a man dies in the occu