delivered the opinion of the Court:
Two questions have been discussed in this case,—first, whether defendant in error has dower in the premises; and, secondly, if she has, whether the yearly value of the same has been fixed on a proper basis. We only deem it necessary to consider the second. It appears that Delos W. Brown, the husband of defendant in error, owned the premises in fee in his life-time, and, that she is his widow. It also appears that Brown, on the 6th day of October, 1853, was recognized by two justices of the peace of Sangamon county, to appear at the next Hovember Term, to answer a charge of manslaughter; that immediately afterward he conveyed the premises to James Rayburn, defendant in error joining in the deed and relinquishing her dower, and he then left the county. This deed was recorded in the proper office in Sangamon county, on the 27th day of December, 1853. It appears that the recognizance was afterward forfeited, but whether at the next or a subsequent term does not appear.
An action of debt was afterward brought on this forfeiture and a recovery had, execution was issued and the premises sold. They were bid in by the city of Springfield, and the school commissioner of the county, both claiming that they were entitled to the forfeiture. The premises not having been redeemed, the question was submitted to the Circuit Court, when it was ordered, that the sheriff convey to the school commissioner. The deed was accordingly executed, and he afterward sold the premises, and plaintiff in error became the purchaser.
It also appears, that Eayburn conveyed to Jacob Bunn, and he afterward conveyed to the city of Springfield. The evidence shows that Eayburn paid no consideration for the premises, and that, for the purpose of discharging the recognizance, Eayburn conveyed to Bunn for the city, and he received no consideration when he transferred his title to the city.
In the case of Shattuck v. The People, 4 Scam. 447, it was held, that, before the estate of the recognizor was bound by the recognizance, there must be, not only a failure to perform the condition, but an award of execution for the penalty, in a proceeding by scvrc facias, or a recovery of a judgment for the penalty in an action of debt; that the recognizance does not, by its own force, become a lien on the estate of the person entering into it, but the lien depends altogether upon the statute. And we are aware of no statutory provision which has declared that a recognizance shall become a lien on the property of the cognizor. It has, however, provided that judgments shall be a lien on the lands of defendants after the last day of the term. It would, then, seem that in this case the lien under the recognizance did not attach until the judgment was recovered on the recognizance; and, although the date of that recovery does not appear in this record, we conclude that it was not until after the deed to Eayburn was executed and recorded.
Then, if this conveyance to Eayburn is valid and binding, of which we give no opinion, plaintiff in error did not acquire the legal title. It appears to be in the city of Springfield. And whether plaintiff in error has an equitable right to have this legal title conveyed to him, is not before the court. Nor is the question whether defendant in error has the right to have those conveyances set aside and canceled for fraud, properly before us for determination. Until the city of Springfield was made a party to a bill properly framed, these questions cannot be determined. So long as the conveyances through which the city claims remain uncanceled, the legal title is in the city. And, as defendant in error relinquished her dower by the deed to Rayburn, through which the title passed to the city, we can see no reason why she should be permitted to recover dower in the premises against plaintiff in error. So long as it subsists, he may set it up as an outstanding title in which defendant in error has relinquished her dower. Until that title is avoided by defendant in error for fraud or otherwise, she is estopped from claiming dower in the premises. The validity of the legal title vested in the city cannot be questioned in a proceeding in which that municipality is not a party. The decree of the court below must therefore be reversed and the cause remanded.
Decree reversed.