Gilbert v. Reynolds ( 1869 )

Mr. Chief Justice Breese

delivered the opinion of the Court:

This was a bill in chancery in the Henry circuit court, for the assignment of the dower of complainant in and to the lands of which her husband, Joseph O. Gilbert, died seized, and which, by conveyance from him, had vested in Sarah E. Reynolds.

A general demurrer was put in to the bill, and sustained by the .court, and the bill dismissed. To reverse that decision, complainant has appealed to this court.

The ground on which the demurrer was sustained was, - we presume, the want of equity on the face of the bill.

It is insisted by appellant that the facts alleged in the bill make a prima facie case, deserving an answer.

We do not think so. The complainant heard that her husband had applied for a divorce from her in the State of Michigan, in 1834, and that a divorce had been granted him. But she alleges she did not know the fact until 1854, some fifteen years before the bill of complaint was filed. In that year, the husband, having married another woman in 1834, removed from Michigan to Henry county in this State, dying in 1863, leaving this last wife and one son. He there acquired this land, the last wife joining him in the' deed on the sale of it. Complainant resting all this time contented, making no effort to undeceive the public by an assertion of her rights, permitting these parties to appear .to the world as they represented .themselves to be, as against these defendants, who are purchasers, she ought to be held equitably estopped. Her silence and inaction during all this time amounts to a fraud, and should be so regarded. This was undoubtedly the view the court below took of the case on the argument of the demurrer, and it is the true view. Admitting all the facts in the case to be true, yet they do not raise an equity in favor of complainant, which a court, administering its principles, ought to enforce.

The demurrer was properly sustained, and the decree must be affirmed.

Decree affirmed.