Walker v. Doane

Citations

• 108 Ill. 236
• 1883 Ill. LEXIS 75

Syllabus

<p>1. Set-off—in equity—rents and profits against dower—insolvency. Dower was allowed a widow in the homestead premises at $350 a year, payable quarterly, on her petition for dower in these and other lands, the decree not preserving her homestead estate. The homestead property was, under a decree of court, sold and conveyed by the administrator of the estate of her deceased husband to a purchaser, subject only to such lien thereon for dower, and the widow refused the possession of the homestead to the purchaser, its rental value being at least double the yearly dower assessed to her, which rents she received, but suffered the taxes to accumulate on the property, and it to go to sale. The widow was insolvent: Held, on bill by the purchaser at the administrator’s sale for possession and for an equitable set-off, that a decree charging the widow with the value of the use of the premises from the date of the administrator’s deed until surrendered to the purchaser, and for taxes paid out by the purchaser, except those which were a lien on the land at the administrator’s sale, and providing that if not paid within a certain time the value of the use of the premises and the taxes paid should be set off against the dower due the widow on the same premises, discharging them from the lien for its payment as far as the amount found against the widow might go, was equitable and proper.</p> <p>2S Same—equitable. Where there is anything peculiar in a case, so as to render it impossible for exact justice to be done by a court of law under the statute, a court of chancery will afford relief through the medium of an equitable set-off. The insolvency of the defendant holding an incumbrance for a yearly allowance in lieu of dower on property bought by the complainant, who is wrongfully kept out of possession by the defendant, affords jurisdiction to a court of equity to apply complainant’s damages in discharge of the incumbrance pro tanto.</p> <p>3. Dower—power of court to decide wido