Bozarth v. Largent

Mr. Justice Shops

delivered the opinion of the Court:

At the common law, a husband held, in right of his wife, all her lands in possession, and owned the rents and profits thereof absolutely. (1- Washburn on Beal Prop. 276; Tiedeman on Beal Prop. sec. 90; Haralson v. Bridges, 14 Ill. 37; Clapp v. Inhabitants of Stoughton, 10 Pick. 463; Decker v. Livingston, 15 Johns. 479.) The birth of issue was not necessary to this right of the husband, which continued during the joint lives of the husband and wife. It was called, an estate during coverture, or the husband’s freehold estate jwre uxoris. (Kibbie v. Williams, 58 Ill. 30; Butterfield v. Beall, 3 Ind. 203; Montgomery v. Tate, 12 id. 615; Croft v. Wilbar, 7 Allen, 248.) It differed from curtesy initiate, in its being a vested estate in possession, while the latter is a contingent future estate, dependent upon the birth of issue. (Wright's case, 2 Md. 429.) It is held in right of the wife, and was not added to or diminished when curtesy initiate arose. Subject,to the husband’s beneficial enjoyment during coverture, the ownership remained in the wife, and on dissolution of the marriage was discharged from such estate of the husband. (Stewart on Husband and Wife, sec. 146.) Where there was marriage, seizin of the wife and birth of issue capable of inheriting, the husband, by the common law, took an estate in the wife’s land during coverture. This was an estate of tenancy by the curtesy initiate, and which would become consummate upon the death of the wife in the lifetime of the tenant. Upon the death of the wife, a tenant by the curtesy was seized of an estate of freehold, which was subject to alienation, and was liable to be taken ■on execution for his debts. Tiedeman on Beal Prop. sec. 101; Howey v. Goings, 13 Ill. 95; Jacobs v. Rice, 33 id. 369; Cole v. Van Riper, 44 id. 58; Beach v. Miller, 51 id. 206; Lang v. Hitchcock, 99 id. 550.

The act of 1861, known as the Married Woman’s act, provides : “That all the property, both real and personal, belonging to any married woman as her sole and separate property, •or which any woman hereafter married owns at the time of' her marriage, or which any married woman, during coverture, acquires in good faith from any person other than her husband, by descent, devise or otherwise, together with all the rents, issues, increase and profits thereof, shall, notwithstanding her marriage, be and remain, during coverture, her sole and separate property, under her sole control, and be held, owned, possessed and enjoyed by her the same as though she was sole and unmarried, and shall not be subject to the disposal, control or interference of her husband, and shall be exempt from execution or attachment for the debts of her husband.”

In this case, Louisa Bozarth, who was the common source ■of title, was the owner of the land in controversy, as it is conceded, at the time of her marriage, August 19, 1863, to Asa Bozarth. The marriage having taken place after the act of 1861 took effect, and the wife being then the owner of the land in question, it was not, during her coverture, subject to the control, interference or disposal of her husband, or liable for his debts or other obligations. The effect of the statute was to abrogate the husband’s estate in her lands, or the estate he would have had at common law during the coverture, and, consequently, during that period he had no estate therein liable to execution or attachment. The act did away with the estate he would have had at common law, growing out of the marital relation, and it therefore follows, if the wife had been living at the time of the redemption and sale by the creditor of her husband, that proceeding would not have divested any right of herself or husband, or conferred any right upon the purchaser.

The question, however, remains, whether Asa Bozarth, the husband, on the death of his wife, in 1868, acquired an estate in her land as tenant by the curtesy. We have already seen that the property of a married woman, under the act of 1861, notwithstanding her marriage, was to be and remain, during coverture, her sole and separate property, and was not subject to the husband’s control or liable for his debts. The general effect of statutes of this kind is to destroy the marital rights of the husband in his wife’s estate; but a statute may exempt her property from his debts without in any way destroying his rights therein. Unless tenancy by the curtesy is destroyed by the statute by express words or necessary implication, or by the wife’s disposition of her property, by virtue of her power-over it, he will be held to have an estate by the curtesy at her death. The prevailing opinion seems to be, that while separate property acts do suspend, during coverture, all the rights of a husband, or his creditors, in statutory separate property, they do not destroy curtesy, or prevent its vesting on her death, unless such an event is clearly excluded by the statute,—as, where the statute not only provides that the property of the wife shall be hers, etc., but also defines her husband’s interest therein, if she dies intestate, in which case curtesy is excluded. Where she has power to alienate or charge her property, she may thereby defeat curtesy, but the statute must .contain express words to enable her to convey alone; and, also, when she has power of disposition of the property by will, she may thereby defeat curtesy. Stewart on Husband and Wife, sees. 243-161; In the matter of Winne, 2 Lans. (N. Y.) 21; Hatfield v. Sneden, 54 N. Y. 380; Noble v. McFarland, 51 Ill. 226; Freeman v. Hartman, 45 id. 57; Cole v. Van Riper, supra.

It will be seen that the Married Woman’s act of 1861 does not attempt to define the husband’s rights in his wife’s property after her decease, nor does it give her any power of disposal of her separate property, independent of the husband. The purpose and effect of the statute were to secure to the wife the control of her separate property during coverture. During that period the husband’s common law rights in her property are suspended. We are of opinion that this act did not have the effect of destroying the estate of curtesy, but that after the passage of that act, and prior to the passage of the act of 1874, the husband, on his wife’s death, leaving issue of the marriage, took a life estate in her land as tenant by the curtesy. After the passage of the act under consideration, the estate by the curtesy in the lands of the wife did not vest in the husband until the death of the wife, (Lucas v. Lucas, 103 Ill. 121, Beach v. Miller, 51 id. 206,) but upon her death such estate became consummate, and vested in the husband in all respects-as at common law. (Noble v. McFarland, 51 Ill. 226; Shortall v. Hinckley, 41 id. 219; Gay v. Gay, 123 id. 221; Castner v. Walrod, 83 id. 171.) It follows, that we are of opinion that upon the death of the wife in 1868, leaving issue surviving, the husband, Asa Bozarth, became seized of a freehold interest in the lands in controversy, as tenant by the curtesy, and which was subject to seizure and sale on execution against him.

The validity of the sale of the premises under the decree of foreclosure, and the redemption upon the execution issued upon the judgment in favor of Welch, and against the said Asa Bozarth, and the sale thereunder, is questioned by the plaintiffs in error. If the foreclosure sale was void for any cause, the judgment creditor redeeming therefrom acquired no title under his purchase, for the reason that his rights, like the purchaser at the sale under the decree of foreclosure, are dependent upon a valid judgment or decree, and sale. Johnson v. Baker, 38 Ill. 99; Mulvey v. Carpenter, 78 id. 580; Keeling v. Head, 3 Head. 592.

It is objected that there was no sufficient service of summons upon the plaintiffs in error, who were defendants in the foreclosure suit. The return to the summons therein is as follows: “Executed this writ by reading the same to the within named Asa Bozarth, James Bozarth, Ida Bell Bozarth and Mary Bozarth, and by delivering to each a true copy hereof on the 10th day of April, 1873,” and properly signed by the sheriff. The process was returnable to the May term, 1873. The service was in apt time. The fact that the summons was read to the defendants did no harm, and that part of the return may be disregarded. It is apparent that the circuit court had, therefore, jurisdiction of the subject matter and of the parties, and mere errors or irregularities, if any, can not be taken advantage of in this collateral proceeding.

It is objected that the mortgaged premises were improperly sold en masse. If this be conceded, it would not render the sale void. At most, it would only be grounds for setting the sale aside, on proper application to the court in apt time. It, however, appears that the land was offered by the master in separate parcels, and receiving no bids therefor, it was then offered and sold en masse. We are not prepared to say that the action of the master was not warranted.

It is next objected that all the lands sold under the decree were redeemed en masse, and so sold to Welch under the execution. A judgment creditor’s right of redemption is no greater or more extensive than that of the original debtor. He can not redeem in a case where the original owner can not redeem within the time allowed by law for redemption by the debtor. In Hawkins v. Vineyard, 14 Ill. 26, a quarter section of land had been sold, of which the debtor otyned only sixty-five acres, and it was held that he could not redeem the sixty-five acres, but that he must redeem the whole or none. A person can not redeem an undivided share of land by paying his proportional share of the debt, and a part owner must redeem the whole. (Durley v. Davis, 69 Ill. 133.) A purchaser of a part of mortgaged land can not redeem that part by paying his proportion of the debt. (Meacham v. Steele, 93 Ill. 135.) When the purchaser at a master’s sale of an entire tract of land afterwards assigns an undivided interest in such purchase, there can be no legal redemption of such undivided interest by a judgment creditor. Groves v. Maghee, 72 Ill. 526; Titsworth v. Stout, 49 id. 78.

Section 25, chapter 77, of the Revised Statutes, provides: “Any person entitled to redeem, may redeem the whole or any part of the premises sold, in like distinct parcels or quantities in which the same was sold,” etc. If the several mortgaged tracts had been sold separately, redemption might have been made of any one or more of the tracts. In such case the amount that each tract sold for would furnish the basis for determining the amount to be paid in order to redeem; but as the several parcels of land were sold together, and for a gross sum, neither the debtor nor his judgment creditor could redeem without paying the full amount for which the same sold, with interest. The law gives the debtor twelve months in which to redeem, after which time any judgment creditor of the debtor may also redeem within fifteen months from the date of the sale; but in so doing, the creditor will possess no greater right than his debtor had within the time limited for redemption by him. After the expiration of twelve months from the sale, the right of redemption of the judgment debtor is gone. He no longer has any interest in the premises, and can not take advantage of mere irregularities in making redemption by his judgment creditor, and his acquisition of title by virtue of a sale in pursuance of such redemption. The purchaser at the foreclosure sale makes no objection to the validity of the redemption, and having accepted the money the redemption was conrplete. The title of Asa Bozarth being gone by his failure to redeem within the time allowed by law, he was not injured by a sale en masse on the execution, if, indeed, the sale could have been otherwise made.

There is no force in the objection that the redemption should have been made in the name of Thompson, assignee of Welch, the judgment creditor. (Sweezy v. Chandler, 11 Ill. 445.) It in no way concerns the plaintiffs in error whether, redemption was made in the name of the plaintiff in the judgment against Asa Bozarth or in the name of his assignee.

No proof was made or offered at the trial tending to show that the premises, when sold under the decree of foreclosure, or when the mortgage was given, were occupied by the mortgagors, or either of them, as a homestead. Nor does it appear that they were at any time so occupied. Therefore, the question of the right of homestead was not presented for adjudication, and can not be considered in this court. It may, however, be observed, that the mortgage was executed and acknowledged before the act of 1872, relating to conveyances, took effect, and the cases cited by counsel were determined under the provisions of that act.

It is claimed that only the title of Louisa Bozarth passed by the sale under the decree of foreclosure, and therefore a creditor of her husband could not redeem from that sale. This contention is not well grounded. While the husband, as we have seen, at the time of the execution of the mortgage had no estate in the land, it was necessary to the execution of a valid mortgage, or conveyance of his wife’s estate therein, that he should join in the mortgage or conveyance, which he did. The mortgage was in the usual form, and contained covenants of both the husband and wife, of good right to convey, seizin in fee, and of general warranty, and was sufficient to pass not only the estate of the wife, but also all the estate, right and interest of the husband in the property which he then had or might subsequently acquire. If he had no estate by the curtesy initiate, or otherwise, during the life of the wife, upon her death he took an estate for life in this land as tenant by the curtesy, which, under the covenants of the mortgage, inured to the benefit of the mortgagee. Gochenour v. Mowry, 33 Ill. 331.

The sheriff’s deed was dated October 31,1874,—the date of the sale upon the redemption,—but was in fact executed January 14,1875, after the term of office of the sheriff had expired. Section 21 of the act relating to judgments, etc., provides, that the redeeming judgment creditor shall be considered as having bid at the sale the amount of the redemption money paid by him, with interest thereon, and the costs of the redemption and sale; “and if no greater amount is bid at such sale, the premises shall be struck off to such person making such redemption, and the officers shall forthwith execute a deed of the premises to him, and no other redemption shall be allowed.” It is urged that the provision of the statute requiring the deed to be made “forthwith” is mandatory, and that a failure in this respect would render the sale void. We are not prepared to so hold. The purchaser is entitled to a deed forthwith in such ease, but the failure of the sheriff to make the deed immediately after the sale will not render the redemption and sale invalid. This provision of the statute must be regarded as directory, only.

•It is lastly objected, that Beeves, the sheriff, had no authority to make the deed after his term of office had expired. Section 30, of the act relating to judgments, etc., provides: “The deed shall be executed by the sheriff, master in chancery, or other officer who made such sale, or by his successor in office,” etc. Freeman, in his work on Executions, (section 327,) says: “The officer who made the sale, whether he continues in office or not, is, in ordinary circumstances, and in the absence of statutory provisions to the contrary, the proper person to make a conveyance. * * * When the term of the officer who made the sale terminates, his power to make the conveyance continues. In fact, unless the new sheriff is specially authorized by statute, he seems to have no authority whatever to make a conveyance based on a sale made by his predecessor.” We are of opinion that the deed made by the retiring sheriff, under our statute, was valid. If this is so, it will be unneces- , sary to determine whether the deed made by his successor in office is good or not. In any event, under the section of the statute quoted, by one deed or the other the title acquired under the redemption sale passed to the grantee in said deeds.

The plaintiffs claimed an estate in fee in the land in controversy, with a present right of possession. Their father having a life estate in the property, which has passed by virtue of the foreclosure sale, the redemption and sale thereunder, and the deeds in pursuance thereof to the defendant, they are not entitled to recover of the defendant the possession of said lands during the continuance of such estate. Until the termination of that life estate by the death of the life tenant, their right to a recovery must be postponed.

Some questions are raised as to the effect of the proceedings before mentioned, upon the fee to the land, which are not now before us for consideration, and no adjudication is made in respect thereof.

The judgment of the circuit court will be affirmed.

Judgment affirmed.