dissenting:
I am unable to concur in the opinion of the majority of the court.
By our laws, “equitable estates shall be subject to the widow’s dower, and all real estate of every description contracted for by the husband during his lifetime, the title to which may be completed after his death.”
The only question raised is, whether the husband of the demandant, in his lifetime, had such title to the lands in controversy as, under this provision of the statute, her dower would attach. The facts alleged in the petition, and admitted by the demurrer to be true, are as follows: Petitioner intermarried with Charles Taylor in 1832, and her husband died in 1868. The land in which she claims dower was school land, and on the 24th day of October, 1833, the school commissioner sold it to her husband, Charles Taylor, .on the usual terms, viz: three equal payments, becoming due respectively in one, two and three years, and issued to him the usual certificate that he would be entitled to a patent on making the payments of the purchase money. The patent was issued on the 26th day of June, 1836, to be delivered to him on full payment.
The payments were made as they severally matured, and although the patent was in the hands of the commissioner before the last payment became due, it was not actually delivered to him until 1848. Still it must be regarded as having been in the hands of the commissioner for the benefit of Taylor, and operated as effectually to invest him with the title which the State had, as though it had been all the time in his own hands.
On the 10th of June, 1835, Taylor executed a mortgage on the premises to Mary Taylor, to secure certain indebtedness. The mortgage contained in the granting clause the words, “grant, bargain and sell,” but no covenants of warranty, general or special, other than what the law would imply from the use of those words.
In 1840, it is alleged, certain proceedings were had by scire facias in the name of the mortgagee against the mortgagor alone, whereby a strict foreclosure, it is said, was decreed by the court, and thereafter Mary Taylor conveyed the lands covered by the mortgage by deed, under which appellee holds such title as he has to the premises. It is exceedingly doubtful whether any title passed under these proceedings, but that is not a question in this case, at least it is not material to the decision.
It is claimed that Taylor had neither the legal nor such equitable estate in the lands in which his wife would be.dowable.
The objection is based on the ground Taylor had only a contract to purchase the property; that he parted with all his interest in the premises before the payment of the purchase money. Hence itissaid, when he took thepatentthetiile passed eo instanti to the mortgagee, or to those claiming under her. The objection is not founded in fact. Taylor had not parted with all his interest prior to the payment of the purchase money, and he was therefore in a position to receive the legal title. He had previously incumbered whatever title he had, with a mortgage. It was not an absolute conveyance, but was subject to a defeasance contained in the instrument itself, and the title conveyed could be defeated at any moment by payment of the mortgage indebtedness. His equity of redemption had not been foreclosed prior to the payment of the entire consideration and the issuing of the patent. He stood, therefore, in a position to take the legal title to his own use, so that, upon the removal of the incumbrance, a fee simple estate would vest in him.
Prior to the foreclosure, the estate in Taylor was an estate of inheritance that would descend to his heirs in case of his death. He then had the present right to be clothed with the legal title. But it is insisted he took the legal title in trust for the benefit of the mortgagee. Had his equity of redemption been foreclosed before Taylor was in a position to enforce a specific performance of his contract, the argument would have force. Such is not the case. The fact he had previously mortgaged his interest would not bar his right to enforce a specific performance of the contract, had the State refused to issue the patent. It could not then be known that he would not remove the incumbrance. Had he done so, of course his title would have been perfect.
It is apparent, then, the demandant’s husband had an equitable estate of which he could only be deprived by foreclosure of the mortgage, and to which, under our statute, her dower would attach. Having once attached, her dower could only be barred or released in some appropriate manner prescribed by law. This view of the law, it seems to me, is abundantly sustained by the decisions of this court.
In Stowe v. Steele, 45 Ill. 328, it was declared the wife was entitled to dower where the husband held such equitable estate as entitled him to be invested with the legal title.
The case of Nicol v. Ogden, 29 Ill. 323, enunciates the same general principles.
The case at bar can clearly be distinguished from Owen v. Robbins, 19 Ill. 545, in its facts as well as the principle upon which the decision is based: There, the. husband of the demand-ant had a contract of purchase, but before he was in a position to enforce a conveyance, he parted with all his interest in the premises, so that no estate whatever remained in him. It was decided, and very properly, that when he took the legal title, it was in trust, and passed instantly to his grantee. The principle which ought to control the decision of this case was there distinctly recognized, that if the husband, at the time of his death, had been in a position to enforce a conveyance of the land by bill for specific performance, his widow would have been dowable in the lands.
The same may be said of Steele v. Magee, 48 Ill. 396. There, the husband had contracted for certain lands, and before he had paid the purchase money in full or obtained a patent, he sold his entire interest in the premises, and it was held, as in Owen v. Robbins, supra, the widow was not entitled to dower.
In both those cases the assignees were entitled to the legal title, and if any one could enforce a specific performance, it was the assignees, and not the original purchasers. The latter were never in a position to have the contracts executed in their favor. Notwithstanding the title passed through the original purchasers, their instantaneous seizin was in trust for their grantees, and it is now the settled doctrine of this court that such trust estates are not subject to the widow’s dower. But that principle has no application to the case at bar. Here, the husband of the demandant had never alienated his entire interest in the lands. It was, at most, a conditional sale. He still retained his equity of redemption, which is itself an equitable estate of inheritance, and upon being clothed with the legal title, as he was, had he removed the incumbrance resting upon it, as he had the clear right to do, an estate in fee simple would have vested in him subject to no defeasance.
If the legal title conveyed by the State to Taylor passed instantly to the mortgagee, as is claimed, what reason was there for foreclosing the mortgage? Had the mortgagee taken the title conveyed by the patent, it was the paramount title, and certainly nothing more was needed. But this view is illogical, and can not be maintained. The legal title did not pass absolutely until the mortgagor’s equitable title had been foreclosed, and this was not done for some years after the issuance of the patent to the mortgagor. The fact the mortgagor afterwards suffered the mortgage to be foreclosed, and thereby became deprived absolutely, both of his equitable and legal title to the lands, could not affect the widow’s right of dower. She was not a party to those proceedings, and was in nowise affected by them. Her dower had previously attached, and had never been barred or released in any manner known to the law.
In my judgment the decree of.the court below ought to be reversed.