delivered the opinion of the court:
The correctness of the ruling of the chancellor upon the plea to the original petition was, we think, clearly right. It presented a complete defense to the claim of dower alleged in that petition. We regard the bill set up in that plea as in substance one to foreclose a mortgage given to secure purchase money. If Durbin in fact bought the land in question from Blackford, and agreed with him to execute and deliver back a mortgage to secure the unpaid purchase money, then, as against Durbin, a court of equity could properly treat that.as done which was agreed to be done, and render a decree subjecting the premises to the payment of the amount remaining due and unpaid. (Richardson v. Hamlet, 33 Ark. 237; Marrow v. Turney, 35 Ala. 131.) Under the maxim that equity will treat that as done which ought to be done, the agreement to execute a mortgage to secure the payment of the purchase money could be treated as such a mortgage. (Daggett v. Rankin, 37 Cal. 321; Hall v. Hall, 50 Conn. 111; McQuire v. Peay, 38 Mo. 56.) To the same effect is Sprague v. Cochran, 144 N. Y. 112. As against a purchase money mortgage a widow has no right of dower. It is expressly so provided by our statute. (2 Starr & Cur. Stat.—2d ed. —chap. 41, par. 4.) The statute is but a re-enactment of the common law. “The seizin of the husband passing from him eo instanti that he acquired it, and being immediately re-vested in the grantor, the widow could not claim dower in the premises.” (Stephens v. Bichnell, 27 Ill. 444, and cases cited.) Hence the wife is neither a necessary nor proper party to a bill to foreclose such a mortgage. (Stephens v. Bichnell, supra; Baker v. Scott, 62 Ill. 86; Short v. Raub, 81 id. 509.) The same rule is applicable to a proceeding to enforce a vendor’s lien. Mutual Building and Loan Ass.v. Wyeth, 105 Ala. 639; Sarver v. Clarkson, 59 N. E. Rep. 933.
But it is unnecessary to pursue this inquiry. We entertain no doubt that the petitioner below is concluded by the decree rendered upon the bill of Blackford et al. v. Durbin, and barred of all right of dower in'the lands ' in question unless they were described in that bill and decree by mistake or fraud, and the decree in her favor was manifestly rendered by the court below upon that theory. It seems to be thought by counsel for appellants that she cannot, in this action, be heard to urge that there was such a mistake. We are unable to perceive upon what reason or authority that position can be sustained. Section 1 of the Dower act unquestionably gave her a right of dower in the lands if the facts alleged in her amended petition are true; that is, she was endowed of the'third part of all the lands whereof her deceased husband was seized of an estate of inheritance at any time during the marriage unless she had relinquished the same in legal form. Her petition was filed within a few months after the death of her husband, when her inchoate right of dower became consummate, and until which time she had no interest in the lands which she could assert. It makes no difference that the proceeding to foreclose the equitable mortgage set up first in the plea and afterward in the answer was a proceeding in rem and binding upon all the parties thereto and their privies in estate and could not be attacked by any of them in a collateral proceeding. Appellee was not a party to that bill or decree. It cannot be seriously urged that her husband so far represented her interests in that case as to conclude her. Any mistake made or fraud committed in that proceeding cannot bind her in this. If, as a matter of fact, her husband did not purchase the north-east quarter of section 8 of Blackford, or receive any deed of conveyance from or through him, and if the alleged agreement to give a mortgage to secure the unpaid purchase money related to other and different lands but was made to apply to said quarter section by fraud. or mistake, no default of her husband or acquiescence on his part could effectually bar her right of dower therein. Section 16 of the Dower act provides: “No judgment or decree confessed or recovered against a husband or wife, and no laches, default, covin, forfeiture or crime of either, * * * shall prejudice the right of the other to dower or jointure, or preclude the other from the recovery thereof if otherwise entitled thereto.”
While, as already said, if the husband purchased the north-east quarter of section 8 of Blackford and agreed to give him a mortgage to secure the unpaid purchase money the wife (appellee) would not be a proper party to a bill to foreclose such a mortgage, because, as against such a mortgage, she would have no right of dower, yet if the lands described in that bill were not purchased from Blackford or conveyed by or through him to the husband, then the wife became seized of an inchoate right of dower in the premises, and clearly no judgment or decree of a court could effectually deprive her of that right without giving her a day in court. It is only where the wife joins with her husband in the execution of a mortgage for the purpose of relinquishing her dower that she becomes a necessary party to foreclose the same, and the only necessity for making her a party then is to bar her equity of redemption in her right of dower, or to give her the opportunity to redeem and prevent a sale of the mortgaged premises. (Wright v. Langley, 86 Ill. 381; Camp v. Small, 44 id. 37; Pope v. North, 33 id. 440; Sheldon v. Patterson, 55 id. 507.) If a husband executes a mortgage upon real estate of which he is seized during his marriage,.without his wife joining therein, the mortgage may be foreclosed without the wife being made a party,- and while she would have no interest in the land which could be asserted during the lifetime of her husband, it has never been claimed that she could not upon his death enforce-her right to dower, or that such right would in any way be affected by the decree of foreclosure against, the land and her husband. There is in this case no question of laches or limitation. Appellee brought her action promptly upon the death of her husband. Upon the allegations of her amended petition, properly sustained by proofs, she was entitled to the decree in her favor. The proof should, however, as in all cases of alleged fraud or mistake, have been clear and satisfactory. Especially is this true where the decree called in question has remained in force for so many years. Does the evidence offered by appellee meet this requirement of the law? We think not. As appears from the abstract, the only proof offered on that subject was the record of a certificate of entry, as follows: Original entry in the county clerk’s office in McLean county, Illinois, not paged, shows entry of north-east quarter of section 8, town 21-5, September 27, 1852, by William L. Drybread; a deed from William L. Drybread and wife to Daniel M. Durbin dated May 29, 1855, for the premises in question; also the bill by John E. Blackford, D. Richards and Asa Weedman against Daniel M. Durbin and Amos H. Durbin, filed November 21, 1859, in the circuit court of McLean county, Illinois; also the summons and return thereof and the decree rendered in said cause.
Conceding that the certificate of entry was competent evidence to prove title in William L. Drybread, the deed of himself and wife to Daniel M. Durbin dated May 29, 1855, does not disprove the allegation of the Blackford bill that he “sold and caused to be conveyed to Daniel M. Durbin the north-east quarter of section 8,” etc., nor the recital in the decree that “on June 26, 1855, said Blackford sold and caused to be conveyed to Daniel M. Durbin the north-east quarter of section 8,” etc. The fact that Dry-bread and wife executed a deed for the land in question to Daniel M. Durbin dated May 29, 1855, does not prove that John R. Blackford did not sell and cause to be conveyed the same lands to Daniel M. Durbin on June 20, 1855. In other words, all that the petitioner proved may be true and the allegations of the Blackford bill and the findings and decree thereon be also true.
We are of the opinion, therefore, that the decree below was unauthorized by the evidence, and it will accordingly be reversed and the cause remanded to the circuit court for further proceedings not inconsistent with this opinion.
Reversed and remanded.