Marvin v. Collins

Mr. Justice Walkeb delivered the opinion of the Court: This was a bill in chancery, filed by appellee, in the Circuit Court of Kane county, against appellant, for the allotment of dower in several pieces of real estate, which she alleges her deceased husband held, by an equitable title, during his life, and on its being sold she did not relinquish her dower. On the trial below, appellee introduced a number of witnesses to prove that her deceased husband had purchased the premises, in which dower is claimed, and, although he had paid for the lands, they had been conveyed, by the person of whom he had purchased, to others, at his request. Appellant introduced the record of a proceeding between appellee and her husband, from which it appears that a divorce was decreed, and the husband was required to pay her a yearly sum, as alimony. Also, that some time subsequent to the decree granting the divorce, she and her husband, for the purpose of having a final settlement of their difficulties, agreed to submit them to arbitration, and chose arbitrators to pass upon the questions submitted, and to divide the property between them. The award made by the arbitrators was entered of record, and became a decree of the court. After recitals, it declares that appellee should hold, in her own right, the dwelling-house for life, and a quantity of personal property, which they describe as that being in the dwelling, except a few articles which are reserved. The award then contains this clause: “ And we further award and determine, that the above property shall be taken, and considered, as the full and entire share, part and portion of property belonging to said Elizabeth Collins, or to which she shall be entitled hereafter, of all property heretofore, or now, owned or held by the said Thomas H. Collins. And we do further award and determine, that, from and after this date, all liabilities and indebtedness from the said Thomas H. Collins, to the said Elizabeth Collins, arising or accruing by way of alimony, by virtue of a decree of the^Kane county Circuit Court, shall cease, and be null and void.” It also appears that appellant was the purchaser, under the assignment of -a certificate óf sale of the premises, by the sheriff, under execution, to Strader, who assigned to appellant. It is urged, that the award, which became a decree of the court, is so full and comprehensive in its terms, that it cut off, not only appellee’s alimony under the' previous decree of the court, but also her dower in the real estate of her husband. The terms of the award are broad and comprehensive enough to embrace dower as well as alimony. The language is, that the property awarded to her, as her own, “ shall be taken, and considered, as the full and entire share, part and portion of property belonging to said Elizabeth Collins, or to' which she shall be entitled hereafter, of all the property heretofore, or now, owned or held by her husband.” This language certainly is broad enough to embrace, and was, no doubt, intended by the arbitrators to embrace, every species of interest which she might have or claim in her husband’s property. They had been selected, by the parties, to make a fair and equitable division of the property, as they had been previously divorced and permanently separated. And they say it is her full share, part and portion then belonging to her, or to which she should be entitled thereafter. They were settling the rights of the parties, as they then stood to each other, and they say that what they awarded to her was in full of her present or future rights, as well of property previously owned, as of that he then held. The award became the decree of the court, by consent of the parties, and, until reversed, it must bind parties and privies; and we are at a loss to perceive any difference between a decree found and rendered by the court, and a decree rendered on an award, adopting its terms and conditions. In either case, the decree is that of the court, and must be binding and conclusive so long as it remains in force. And we have seen that its language would seem unmistakably to embrace her dower, and to bar all claims to it, as well as her alimony. Nor is it an answer to say that the arbitrators exceeded their power. That may be possible, but no objection was taken to the award, and when it became, by consent of parties, a decree, they have no more right to question the propriety of that decree, than if it had been rendered by the court on evidence in the case. The parties can not, after the enrollment of a decree, question its propriety in a collateral proceeding. In such a case, the only question is, what did the court decree, and not what it should have decreed. In this case, we are of the opinion that the award and decree barred the dower of appellee in the premises, and the decree of the court below must, therefore, be reversed and the cause remanded. Decree reversed.