Selb v. Montague

Citations

• 102 Ill. 446
• 1882 Ill. LEXIS 53

Syllabus

<p>!• Do web—homestead—where there are incumbrances—rights of the widow, as to a stranger purchasing from the husband. If mortgaged property is bought by a stranger, from the mortgagor, under such circumstances as to show that he only paid for the excess of its value over the mortgage debt, which he is to pay as a part of the purchase price, the widow of the mortgagor will be let in to claim dower at law if such purchaser obtains a discharge of the mortgage.</p> <p>2. Same—in case of mortgage before marriage. Where the husband has mortgaged his land before marriage, his wife, on marriage, takes an inchoate right to dower only in the excess of the value of the land over the amount of the mortgage, and if the husband pays the mortgage debt, he acquires the title that was in the mortgagee, and his wife’s dower attaches to it the same as to any other interest in land acquired by him during coverture.</p> <p>3. Same—where the heir discharges the incumbrance. If the mortgage is paid by the heir after the death of the ancestor, this is equivalent to a purchase by the heir of that interest in the estate which was in the mortgagee. The widow will have no dower in such new estate, except she makes just contribution towards the cost of removing the incumbrance, or pays her ratable share of the redemption money.</p> <p>’4. Same—as to purchaser at administrator’s sale. A purchaser of mortgaged land at an administrator’s sale takes the right of the heir, neither more nor less—the equity of redemption—and if he redeems from the mortgage he holds as the heir would have held had he paid off the mortgage, and the widow can have dower only by paying her ratable share of the money necessary to discharge the mortgage. The same rule applies in regard to her claim of an estate of homestead.</p> <p>5. So it is hold, where a husband had, before marriage, mortgaged his lauds, releasing the homestead, and after marriage he gave another mortgage on the same land, in which the dower and homeste