Reynolds v. McCurry

Citations

• 100 Ill. 356
• 1881 Ill. LEXIS 104

Syllabus

<p>1. Partition—jurisdiction of subject matter. Lands not held in joint tenancy, tenancy in common or coparcenary, are not subject to partition, either at common law or under the statute, and the court will have no jurisdiction of the subject matter of a suit for partition, and therefore a proceeding for the partition of such lands will be absolutely null and void.</p> <p>2. Guardian and ward—setting aside guardian’s sale of ward’s land. A bill by an infant to set aside a sale of his lands under a proceeding by his guardian to assign dower, and for partition between the infant and his mother, which shows that an abundance of means for the support of the ward came to the guardian, and that such infant was the sole owner of the land, subject only to the dower of his mother, and that the guardian and mother entered into an unlawful combination for the purpose of converting his estate to their own use, under which a decree of sale was procured and the sale made, presents sufficient ground for the relief sought.</p> <p>3. Same—ward not bound to tender the purchase money paid to Ms guardian, before avoiding guardian’s sale. Where a guardian, under a void decree, sells the land of his ward, and appropriates the purchase' money to his own use, the ward will not be required to restore to the purchaser the price paid by him as a condition precedent to having the sale set aside.</p> <p>4. Same—toZtero must restore consideration to repudiate contract. It is the general rule that where the consideration of a conveyance by an infant has been expended so that he is not in a condition to restore it, he may nevertheless avoid the conveyance. It is only when he still has the consideration that he will be compelled to return it.</p> <p>5. Widow—has no estate in her husband’s lands before dower is assigned. Upon the death of the ancestor the law immediately casts the freehold of land upon the heir, subject to the widow’s right of dower. Before assignment of dower the widow has no estat