Russell v. Rumsey

Citations

• 35 Ill. 362

Syllabus

<p>1. Deed—certificate of acknowledgment—its requisites to dar a right of dower, prior to act of 1853. A conveyance of land executed by a husband and wife prior to the passage of the act of February 11th, 1853, amendatory of the chapter in the Revised Statutes, entitled “ Conveyances,” where the certificate of acknowledgment fails to state that the wife relinquished her right of dower in the premises, is not sufficient to operate as a bar of dower, under the statute. The omission of those words was matter of substance, and not of mere form.</p> <p>2. Same—equity cannot supply the omission. It is no answer to the claim for dower made by the widow in such a case, that she acts in bad faith; or that she knew when she executed the deed that the purchaser expected to obtain a release of her dower, and that she must have designed to bar it by her act. The same might be said, with equal truth, if she had only signed the deed and acknowledged it in the presence of a subscribing witness, yet her dower would not thereby have been released, nor could witnesses be called to prove the fact. The wife cannot bar her right of dower except by conforming to the requirements of the statute. Nor has equity jurisdiction to specifically execute the contract of a feme covert, whether for the relinquishment of her dower or the conveyance of her real estate. If there has been a mistake by the officer, or the feme covert has acted in bad faith, it is the misfortune of the grantee to have received a deed inoperative to pass the dower.</p> <p>3, Same—act of 1853 — its design—and its constitutionality in vim of its effect upon conveyances previously made. It seems to have been the obvious design of the act of February 11, 1853 (Sess. Laws, 89), to dispense with the requirement in reference to the statement in the certificate, that the wife had relinquished her dower, in conveyances subsequently made, as well as to bar all claim of dower where the statement had been omitted in certificates alrea