Bigoness v. Hibbard

Mr. Justice Dunn delivered the opinion of the court r Since the appellant was not a party to the suits the decrees of foreclosure did not affect her inchoate right of dower subject to the encumbrances existing when her husband acquired the title. A widow who has joined her husband, in his lifetime, in a mortgage for the purpose of releasing her dower may redeem from the mortgage by the payment of the mortgage debt and have her dower in the land. Her right is the same in relation to a mortgage given by her husband’s grantor'before the husband acquired title. The appellant clearly has the right to redeem from the mortgages and have her dower assigned unless, she has lost that right in some way. The appellees claim that she has lost the right because of the lapse of time and laches. The decrees of foreclosure were not void. They did not affect the appellant’s right to redeem, but the conveyances under them had the effect of transferring the legal title to the purchasers. The court not having acquired jurisdiction of the appellant, her right remained unaffected by the decrees. That right, however, was simply a right to redeem. (Walker v. Warner, 179 Ill. 16; Cutter v. Jones, 52 id. 84.) It could be asserted only in a court of equity and might be lost by laches. (Walker v. Warner, supra.) The inchoate right of dower, which was all the interest the appellant had in the premises prior to her husband’s death, was not such a right as could be enforced by any proceeding. She could not bring any action for dower until after her husband’s death, and she began this suit within a year after that event. Before she can have her dower assigned, however, she must redeem from the mortgage by the payment of the mortgage debt, and for this purpose, as well as the assignment of dower, the suit is brought. The appellees argue that the appellant might have maintained a bill to redeem in her husband’s lifetime, and that her failure for fourteen years to bring -such a suit constitutes such laches as to bar her right. On the other hand, the appellant insists that since a wife has no present estate or vested interest in her husband’s real estate but only a contingent interest or possibility of acquiring an interest which she cannot enforce by any proceeding in his lifetime, therefore the appellant could not have maintained a suit to redeem in her husband’s lifetime. In Higgins v. Higgins, 219 Ill. 146, it was held that an inchoate right of dower, though it could not be asserted in the lifetime of the husband, was such an interest as could be the basis of a suit to set aside a deed executed in fraud of the marital rights of the wife, and it was said that the wife might lose her right to relief by long delay in bringing suit after she knew the material facts. The same principle had been previously announced in the case of Freeman v. Hartman, 45 Ill. 57, and was afterward followed in Deke v. Huenkemeier, 260 id. 131. In other States it has been held that the inchoate dower interest of a wife is such as entitles her to redeem from a mortgage in which she has joined. (Davis v. Wetherell, 13 Allen, 60; Mackenna v. Fidelity Trust Co. 184 N. Y. 41; Gatewood v. Gatewood, 75 Va. 407.) A wife need not redeem from a mortgage in which she did not join and which is not aii incumbrance on her dower right, but where it is such an incumbrance she has the right to redeem and to maintain a suit for that purpose. Such right is subject to the same limitations as apply to other cases and may be barred by delay in its enforcement. Counsel for the appellees argue that under the Statute of Limitations of this State all civil actions not otherwise provided for must be commenced within five years after the cause of action accrued, and that this action to enforce a right of redemption, being a civil action not otherwise provided for, should have been begun within five years of the date of the master’s deeds. When the legal title had been conveyed, under the decrees of foreclosure, by the execution of master’s deeds there was no longer any mortgage or any debt. The grantees in those deeds were not in possession as mortgagees after condition broken but as the owners in fee. There existed in appellant simply a right of redemption, which she might enforce in equity. The statute has fixed a limitation of ten years as the time within which a suit to foreclose a mortgage must be brought. The property has all been conveyed by the purchasers at the master’s sales to other parties, while the appellant has taken no action to enforce her right for more than fourteen years. There was nothing to prevent her bringing suit during all this time, and the delay has been such as to defeat her right now to maintain a suit for redemption. The decree will be affirmed. Decree affirmed.