Thompson v. Marsh

Mr. Justice Waterman delivered the opinion of the Court. It is quite true, as urged by appellees, that an unassigned, consummate right of dower is a right resting in action, only. Best v. Jenks, 123 Ill. 47; Bedford v. Bedford, 136 Ill. 354; Hart v. Burch, 130 Ill. 426. It is because it is a right resting in action only, and not an alienable estate, a thing which can be released, not transferred, that a bill in equity may be maintained by a judgment creditor to obtain the appointment of a receiver and the institution of measures whereby this inalienable possession, which is, nevertheless, a substantive, consummate right, may be changed into a property capable of transfer by "deed, and may thus be sold so that the proceeds thereof may be applied in payment of the judgment which the complainant has been unable to obtain satisfaction of by any proceeding or execution known to courts of law. Tompkins v. Ford, 4 Paige, 448; Payne v. Becker, 87 N. Y. 153; Boltz v. Stoltz, 41 Ohio St. 540; McArthur v. Franklin, 15 Ohio St. 485; Petfish v. Buck, 56 Ill. App. 149. The statute does not require that as a foundation for a creditor’s bill, personal demand shall have been made upon the debtor to satisfy the judgment. Alexander v. Tams, 13 Ill. 221; First National Bank v. Gage, 79 Ill. 207; Durand v. Gray, 129 Ill. 9. Upon the sheriff rests the responsibility of returning an execution “ no property found,” and if he do so without direction from the creditor, it is sufficient. Bowen v. Parkhurst, 24 Ill. 257; Schuebert v. Howel, 50 Ill. App. 597. The decree of the Circuit Court is reversed and the cause remanded, with directions to appoint a receiver with authority to institute measures for the assignment of the dower of Charles V. Marsh, and to apply the same, under the direction of the court, to the satisfaction of complainant’s judgment. Beversed and remanded with directions.