delivered the opinion of the Court:
The most important question presented by this record is, what interest had Sophia C. ISTewman, the plaintiff in error, in the land and estate in controversy ? On the answer to this question, this case would seem to turn.
It is claimed by the defendant in error, in his bill of complaint, that she had a fee simple estate in the land, and he filed the bill to subject it to sale to pay a judgment he had obtained against her, and the title to which she had conveyed to one Martin, and he to Martha 27ewman, a daughter of plaintiff in error. The bill seeks to set aside these deeds, so that, when the land is offered for sale under this judgment, there may be no cloud upon the title to deter purchasers.
We have looked in vain through this record to find evidence of a fee simple title in Sophia 27ewman to these premises. The allegation of the bill is, that she has such title, and the complainant in the bill is bound to furnish the proof thereof. It is not to be found in this record. The deed from her husband was inoperative, on account of the relationship then existing between them. A deed from a husband to his wife, during coverture, made when this deed purports to have been made (the 4th of September; 1857), could vest no title in the wife. They were incapable, at that date, of making contracts of this nature between themselves. 2 Kent Com. 129; Whitcomb et al. v. Sutherland, 18 Ill. 579; 1 Black. Com. 442.
What might be' their rights and powers, under our act of 1861, we do not now discuss.
This deed, put in evidence by the defendant in error, shows that the husband claimed the title to the land, that it was in him at the date of the deed. - The occupancy of the plaintiff in error of the land, was equally that of the husband, and in her answer, she explicitly denies the claim of the fee in the land.
From all we can discover in the record, the utmost extent of claim which the plaintiff in error, Sophia, had in these premises, was only a right of dower not assigned, and a homestead right, the former of which is not liable to execution. Blair v. Harrison, 11 Ill. 386 ; Hoots v. Graham, 23 id. 83. Nor the latter, except in the mode prescribed by the act of 1851. Scates’ Comp. 576.
The court should have decreed these rights, and these only, as being vested in the plaintiff in error, Sophia, and should have had the homestead right set off to her by a jury. That she had this right, is clear from the evidence, for it is proved that the husband, Erasmus 17ewman, was residing on the laud with his family at the time of his death ; that the family continued, thereafter, to reside on the premises, and were so residing when the bill was filed. The right of dower follows on the death of the husband.
The defendant in error has not, we think, sustained his bill by proof, and the decree should not have passed in his favor.
For the reason given, the decree must be reversed and the cause remanded.
Deoree revei'sed.