Barker v. Smiley

Mr. Justice Wilkin delivered the opinion of the court: The facts, as above stated, are substantially admitted by the pleadings. The only error urged is, that the petition should not have been dismissed, but a decree should have been entered assigning the dower as prayed. At the time the property was purchased by Samuel B. Barker it is claimed that the purchase was made for the petitioner but the title was taken in the name of the husband in trust for her. If these facts are true, the wife would certainly have no dower interest in the property. Dower, at common law, was an estate for life, to which the wife was entitled, on the death of the husband, in the third part of the legal estates of inheritance, in lands and tenements of which the husband was seized, in deed, or in law, in fee simple, or in fee tale, at any time during coverture, and to which any issue which the wife might have had might by any possibility have been heir. (Sisk v. Smith, 1 Gilm. 603; 10 Am. & Eng. Ency. of Law,—2d ed.—125.) While this rule of the common law has to some extent been modified by statute, yet these modifications have not materially varied the above rule as it is applicable in this case. The conveyance to the husband was merely in trust for the wife. She had the equitable title and he held the naked legal title, which she could have compelled him to convey to her. No right of dower attaches to an estate in which the naked legal title is held in trust for a second party. (King v. Bushnell, 121 Ill. 656.) Eor this reason, if the title was in the husband in trust for the wife she could claim no dower therein. There is another good reason why the decree dismissing the petition is correct. At the time of the hearing upon the creditors’ bills the petitioner filed her answer, in which she set up the fact of the original purchase having been made for her; that the title was held in trust for her by her husband; that he executed the deed of February 2, 1891, and she asked that her rights be adjudicated. At the time of the hearing she was represented by eminent counsel, who forcibly presented her claim to the court, but notwithstanding this the decree, upon the merits, was against her. . It found that the conveyance of May 29, 1893, was in fraud of creditors, that the premises belonged to the husband, ordered a sale, and provided for the payment of $1000 to her for her homestead. In pursuance of that decree the premises were sold and the deed of conveyance made by the purchaser to appellee. The court had jurisdiction of the person of all of the parties, including the petitioner, and also had jurisdiction of the subject matter. The decree, as rendered, was never reversed, but is now in full force and effect and fully executed. To now permit appellant to again litigate these questions would be to give no force or effect to a judicial decree to which she was a party and to entirely set aside a judicial sale properly made. The decree as rendered in the former case was res judicata of all the matters set up in this petition. . Complaint is made that the premises were sold as the property of the husband, and therefore the wife is entitled to dower. We have nothing to do with the justice, reasonableness or correctness of that decree. It cannot be collaterally attacked, and if it was wrong it was the duty of appellant to appeal from it and in this way preserve her rights. If she is injured by the decree and has lost her dower she has no one to blame but herself. If the property was hers originally she should have had the title taken in her name. When the deed was made to her she should have filed it for record. If she had attended to these matters at the proper time and in the proper way she would now be the owner in fee, but as it is she has slept upon her rights, and therefore must bear the burden of her own negligence. She recognized the provisions of the decree by accepting $1000 of the purchase money in lieu of her homestead, and it would certainly be as unjust to permit her to have dower as it would be to again permit her to claim her homestead. We find no reversible error, and the decree of the circuit court dismissing the petition will be affirmed. Decree affirmed.