Lang v. Hitchcock

Mr. Justice Scholfield delivered the opinion of the Court:

Plaintiff in error, as one of the heirs at law of Samuel Aikman, deceased, was, on the 17th of December, 1849, seized in fee simple of an undivided interest in the real estate whereof said Aikman died seized. A petition, purporting to be filed by and on behalf of plaintiff in error and her husband, Patrick Lang, was presented to the circuit court of Williamson county, at its April term, 1852, praying for the partition of such real estate. At that term a decree of said court was rendered, decreeing that there should be a partition as prayed in the petition. Commissioners were appointed, and they reported that they had made partition, by, among other things, setting apart to said husband of plaintiff in error, Patrick Lang, the property now in controversy. This report was approved b3r the court at the same term. Thereafter, said husband of plaintiff in error, Patrick Lang, had the supervision and control of the property. Judgment was confessed by said Patrick Lang on the 19th of October, 1878, before the clerk of the circuit court of Williamson county, in favor of Appleton, Hoyes & Maude, for $704.50. Execution was issued upon this judgment, and levied upon the real estate in controvers3r, and it was sold by the sheriff to defendant in error on the 8th of February, 1879, for $600. Bill was filed to set aside this sale as a cloud upon the title of plaintiff in error. The bill, on hearing, was dismissed.

Without entering upon the question whether plaintiff in error is entitled to any interest in this property, it is quite clear the decree below must be affirmed. The interest of plaintiff in error in the property, it has been seen, was derived as early as December 17, 1849, and in 1852 she appears to have been the wife of her present husband, Patrick Lang. They have one child, — whether born' before or after the Married Woman’s law of 1861 took effect does not appear. If born before that time, Patrick Lang had an estate in this property for his life; if born subsequently, he had an estate in it during coverture, (Rose v. Sanderson, 38 Ill. 247 ,) and, in either event, the estate was one which might be sold on execution. Rose v. Sanderson, supra; Shortall v. Hinckley et al. 31 Ill. 219 . Until the death of her husband, or the extinguishment of his estate by divorce, or in some other way, she is in no condition to bring a suit in regard to her remainder.

The sale here is good as to the husband’s estate, and when it is sought thereby to affect the remainder of plaintiff in error, it will be time enough for her to complain. Higgins v. Crosby, 40 Ill, 260; Noble v. McFarland, 51 id. 226 ; Morrison et al. v. Norman, 47 id. 477; Kibbie v. Williams, 58 id. 30; Castner v. Walrod, 83 id. 171.

The decree is affirmed.

Decree affirmed.