Dinsmoor v. Rowse

Mr. Justice Wilkin delivered the opinion of the court: The lots described in the original bill are, and were at the time of the conveyance by Jonathan D. Lane to his wife, of the value of about §4000. The homestead has never been assigned. It is agreed that that conveyance was void as to the homestead of the value of §1000 but was valid as to the excess. The homestead to the extent in value of $1000 remained in the grantor, Jonathan D. Lane, until his death, which occurred May 18, 1897, and then passed to his wife under section 2 of the statute in regard to homesteads. She took a life estate for the purposes of a homestead for herself and children until the youngest child became twenty-one years of age. She took no estate of inheritance, but the fee became vested in the heirs of Jonathan D. Lane notwithstanding her attempt to convey it to the complainant, Rowse, before assignment. (Anderson v. Smith, 159 Ill. 93; Union Brewing Co. v. Meier, 163 id. 424; Donahoe v. Chicago Cricket Club, 177 id. 351; Lewis v. King, 180 id. 259.) The estate which descended to the heirs was an estate in reversion. The undivided interest of Eugene D. was liable to execution and sale upon a judgment against him. (Brokaw v. Ogle, 170 Ill. 115.) When the widow, Maria A. Lane, attempted to convey the property to the complainant and surrender possession thereof to him, she abandoned all homestead rights therein, and the youngest child being more than twenty-one years of age, the estate in remainder became a title in fee absolute. These conclusions are fully sustained by the decisions above cited, and no good purpose would be served by repeating the reasoning upon which they are based. An attempt is made by counsel for appellee to distinguish this case from that of Brokaw v. Ogle, supra, but it is very clear that that decision is squarely in point here. Cases cited in the argument of counsel for appellee to the effect that the homestead of a deceased husband can not be sold upon petition by his administrator for the payment of debts against him, even subject to the homestead rights of the widow, are not in point. We think the circuit court erred in sustaining the master’s report and setting aside the deed of appellant. It is also assigned for error by the appellant, Dins-moor, that the circuit court erred in dismissing his cross-bill. In so far as that cross-bill sought a partition of the premises and the assignment of dower, we think this error well assigned. The sheriff’s deed having vested in the appellant the title to an undivided one-third of the one thousand dollar interest in the lots, he clearly has the right to a partition thereof, subject to the dower rights of the widow. In so far as that cross-bill sought to bring into the case Marshall Field & Co. and compel them to enforce collection of their judgment against the Mason county lands, we think the circuit court properly sustained the demurrer. Marshall Field & Co. were not parties to the original bill, nor did it seek in any way whatever to affect their rights. It was entirely foreign to that bill for Dinsmoor to attempt to interject into that litigation rights of third parties. In other words, to that extent the cross-bill was not germane to the original bill. For even greater reasons the cross-bill of Marshall Field & Co. was properly dismissed. Their judgment was not a lien upon the homestead of Jonathan D. Lane at the time of his death. Clearly they could not have levied upon and sold it during his lifetime, and therefore they have no right to proceed by execution against the heirs. The judgment of the circuit court will be reversed and the cause remanded, with directions to proceed in conformity with the views here expressed. jReversed and remanded.