delivered the opinion of the Court:
Complainant, in her bill, alleges that she was married to Charles Taylor in 1832, and that he departed this life in 1868; that during their marriage her husband was seized of an estate of inheritance of the lands described in the bill ; that her husband purchased the same of the school commissioner of Cook county on the 24th of October, 1833, at auction, to be paid for in three annual installments, and for which he received the usual certificate of purchase; that the payments were made as they fell due, the last occurring October 25, 1836, Avhen the commissioner gave to him a certificate that he was entitled to a patent. It had been issued on the 25th of June, 1836, and placed in the hands of the commissioner to be delivered Avhen full payment for the land should be made, but was not, in fact, delivered to Taylor until in the year 1848, some twelve years after the alleged payment of the last installment.
The bill further alleges that, on the 10th of June, 1835, Charles Taylor executed a mortgage upon the property to one Mary Taylor, to secure the payment of |2000, which was duly acknowledged and recorded. It contained the words “grant, bargain and sell,” but no other covenants either general or special; that at the Spring term of the Cook circuit court, 1840, a proceeding by scire facias to foreclose the mortgage was commenced by Mary Taylor against Charles Taylor alone, and he was served with process, when a strict foreclosure of the mortgage was decreed by the court, and Mary Taylor subsequently conveyed the premises by deed under which appellee holds the premises. And the bill concludes with a prayer for the assignment of dower in the premises.
Defendant filed a demurrer to the bill, which was sustained by the court, and the petition was dismissed. From that decree complainant appealed and brings the record to this court, and assigns for error the sustaining the demurrer.
Had Taylor made an absolute assignment of his certificate of purchase, instead of the mortgage, then the case would fall precisely within the facts in the case of Owen v. Robbins, 19 Ill. 545. It was there held that dower does not attach to lands merely contracted for by the husband. It was said the contract, until it was executed, is only inchoate, and may be cancelled by the parties; or it, like any chose in action, may be assigned so as to pass the equitable interest in the agreement to the assignee; that when thus sold, in equity, the title to the contract passed to the purchaser, and with it all the rights his vendor held under it; that in such a case the wife had no claim of dower in the premises, and any act her husband might perform to complete the title in his assignee could give her no right to dower; that Avhen the last payment was made an equitable title Amsted in the assignee by virtue of the deed to him, and it would have equally inured to him by an assignment Avithout, as Avith, the covenant of Avarranty. It was also said in that case the statute did not embrace a contract for the purchase of lands which had been assigned by the husband in his lifetime.
Here, there was a conditional assignment of the contract before the second or third payment was made, and before there was any right to enforce the performance of the agreement. When the mortgage was executed, there is no pretense for saying that the mortgagor had an equitable estate of inheritance, in which his wife could hold dower in the premises. He held only a contract for the purchase, which might or not ripen into an equitable, or even into a legal title; but he held neither when he executed the mortgage. He then had no title he could convey, but a contract assignable in equity, and the mortgage only operated as a defeasible assignment, and equity would refer his subsequent payments to the benefit of the purchase, and to convert the contract into a title both legal and equitable, for the benefit of himself and the mortgagee; and when the last payment was made the equitable title was complete, and it may be, the legal title also, as the patent had then been issued but not delivered.
.Under the doctrine announced in the case of DeWolf v. Haydn, 24 Ill. 529, the after acquired title in this case inured to the benefit of the mortgagee by force of the statutory covenant. But, independent of that statute, we have seen that it was held, in Owen v. Robbins, supra, that in equity the title would inure to such aq assignee without the force of covenants in the assignment. It would be a fraud upon the assignee to permit the assignor, by paying, the balance of the purchase money, to defeat or otherwise incumber the title already transferred. We must presume that such payments are made to ■acquire title, and not to destroy or incumber the title assigned. The mortgagor must have known he was perfecting the title in the mortgagee when he paid the remaining installments.
Having equitably assigned his contract with the school commissioner for the purchase of the property, the mortgagor only became a trustee in equity for the mortgagee, when he paid the purchase money and became invested with the title which, in equity, inured to the benefit of the mortgagee. She then became, under the mortgage, entitled to the same rights she would have had if the mortgagor had paid before the execution of the mortgage. But the mortgagor nor appellant acquired any title by the payment of the.purchase money as against the mortgagee. The title only passed through him to his assignee. He never had an inheritable estate free from the incumbrance of this mortgage. And appellant had no shadow of a claim for dower at the time the mortgage was executed, nor did she become invested with any such right when the last payment was made.
When her husband transferred the contract of purchase, lie had no such estate as required her to relinquish her dower in the premises, as she then had no such right. Hor did any subsequent act of the husband vest her with such a right. Had he redeemed from the mortgage, then she would have for the first time become invested with the inchoate right of dower. But no such redemption was ever made. On the contrary, he permitted a foreclosure to be had, and she, in her bill, alleges that it was a strict foreclosure. This, if true, cut off the husband’s rights in the premises; but even if not, the wife, we have seen, never has acquired any right of dower in the premises. She had none when the transfer was made, and acquired none by the completion of the payment of the purchase money by her husband.
The absolute transfer of all such contracts before they are performed by the purchaser, and before he has become invested with an equitable fee, undeniably pass free from all claim of dower by the wife of the assignor. And in all certificates of purchase assignable by the statute, their transfer in the mode prescribed, whether before or after the payment of the money, on the expiration of the time for redemption, manifestly precludes the wife of the assignor from afterwards claiming dower in the premises as against the assignee. Here was a conditional transfer of this contract, to render which absolute an effort was made by proceedings to foreclose, and the husband of appellant acquiesced in and treated the foreclosure as absolute for twenty-eight years or more. So far as he was concerned he must be regarded as considering and treating the title, whatever it was, as being all in the mortgagee and her grantees, and as having no claim whatever remaining in him. He was barred, in five years, from prosecuting error, and however erroneous the foreclosure, his acquiescence in it had estopped him, long before his death, from redeeming or from being heard to say the foreclosure was irregular.
The foreclosure, although erroneous, related back to the date of the mortgage. The court had the necessary jurisdiction to render a valid and binding judgment, and it must be held conclusive upon the parties, however erroneous. And relating back to the date of the mortgage, the effect was the same as though the mortgagor had then transferred the certificate of purchase bv absolute assignment.
We are, for these reasons, of opinion that the decree of the court below should be affirmed.
Decree affirmed.