{ "id": 3337752, "name": "Katherine F. Hayes, Appellant, v. Harold C. Hayes et al., Appellees", "name_abbreviation": "Hayes v. Hayes", "decision_date": "1931-01-27", "docket_number": "Gen. No. 34,326", "first_page": "600", "last_page": "606", "citations": [ { "type": "official", "cite": "259 Ill. App. 600" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "139 Iowa 115", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8645591 ], "opinion_index": 0, "case_paths": [ "/iowa/139/0115-01" ] }, { "cite": "213 Ala. 337", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5707064 ], "opinion_index": 0, "case_paths": [ "/ala/213/0337-01" ] }, { "cite": "142 N. C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651875 ], "opinion_index": 0, "case_paths": [ "/nc/142/0221-01" ] }, { "cite": "327 Ill. 214", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5192718 ], "opinion_index": 0, "case_paths": [ "/ill/327/0214-01" ] }, { "cite": "260 Ill. 131", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4735533 ], "opinion_index": 0, "case_paths": [ "/ill/260/0131-01" ] }, { "cite": "168 Ill. 31", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3188187 ], "opinion_index": 0, "case_paths": [ "/ill/168/0031-01" ] }, { "cite": "117 Ill. 55", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2892293 ], "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/ill/117/0055-01" ] }, { "cite": "219 Ill. 146", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5621598 ], "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill/219/0146-01" ] }, { "cite": "45 Ill. 57", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 425023 ], "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/ill/45/0057-01" ] }, { "cite": "213 Ill. 498", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3315329 ], "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ill/213/0498-01" ] }, { "cite": "245 Ill. 492", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3408705 ], "weight": 2, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/ill/245/0492-01" ] }, { "cite": "223 Ill. 423", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3336318 ], "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/ill/223/0423-01" ] }, { "cite": "318 Ill. 193", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5151589 ], "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill/318/0193-01" ] }, { "cite": "338 Ill. 345", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5239028 ], "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/ill/338/0345-01" ] } ], "analysis": { "cardinality": 554, "char_count": 11430, "ocr_confidence": 0.519, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09365835614354351 }, "sha256": "b9a80e8d4b09b0aad193c24ed748fe97c3c6796131805b2af26ed479b2cfe7b2", "simhash": "1:817515206453081b", "word_count": 1956 }, "last_updated": "2023-07-14T14:37:37.096016+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Katherine F. Hayes, Appellant, v. Harold C. Hayes et al., Appellees." ], "opinions": [ { "text": "Mr. Justice Gridley\ndelivered the opinion of the court.\nOn February 14, 1929, complainant filed a bill in the superior court of Cook county against Harold C. Hayes, Wollenberger & Co., a corporation, Chicago Title & Trust Co., a corporation, and Progressive Bond and Mortgage Co., a corporation, praying that a first mortgage trust deed on certain described premises in Chicago, dated July 1,1927, and recorded July 5, 1927, \u201cbe set aside and decreed to be void,\u201d in that it \u201cfraudulently deprives or attempts to deprive\u201d complainant \u2018 \u2018 of her inchoate right of dower \u2019 \u2019\u25a0 in the premises. All four defendants filed general demurrers to the bill. On May 13, 1929, after argument, they were sustained and, upon complainant electing to stand by the bill, the court dismissed it for want of equity. She prayed and perfected an appeal to the Supreme Court but subsequently the cause was transferred to this court on the ground that a freehold was not involved. (Hayes v. Hayes, 338 Ill. 345, 346.) Of the printed briefs of appellees, here filed, one set is by counsel representing the three corporations, and the other by counsel representing Harold C. Hayes.\nIn the bill complainant alleged inter alia that she resided in Brookline, Massachusetts; that on July 28, 1920, she lawfully married Harold C. Hayes in Massachusetts, and for a time lived with him as his wife; that on May 1, 1921, their one child, Virginia Gertrude Hayes, was born; that subsequently Hayes deserted complainant and his whereabouts were unknown to her for several years; that on May 24, 1924, he, without being divorced from her, \u201cwent through a marriage ceremony\u201d with one Maurine Geinzer in Chicago ; that about February 15, 1927, he purchased certain improved real estate, known as the Metropole Hotel, at 2300 South Michigan Avenue, Chicago, and which consisted of two parcels; that Hayes took title in fee simple to one parcel (describing it) by' a trustees \u2019 deed, dated February 15, 1927, and recorded in the recorder\u2019s office of Cook county on February 25, 1927; that the other parcel was a certain leasehold estate (describing it) for 99 years, ending April 30,1989, which was assigned to Hayes by written assignment, dated February 15, 1927; that the purchase price of the two estates and building was $205,000; that Hayes executed and delivered a purchase money mortgage, dated and recorded on said dates, to the Chicago Title & Trust Co., as trustee, which was released of record on August 25, 1927; that on July 1, 1927, he executed and delivered a trust deed (recorded July 5, 1927) on said estates and building to said company, as trustee, securing a bond issue of $210,000, which bonds \u201cwere offered for sale and sold to various investors\u201d by Wollenberger & Co.; that said trust deed also was executed by Maurine Geinzer, who purported to sign the same as \"Hayes\u2019 wife and to release her dower and homestead rights in the premises; and that at that time, although complainant was the lawful wife of Hayes, she did not sign the deed and did not have knowledge of any of the above mentioned transactions.\nComplainant further alleged that she continued to be the lawful wife of Hayes until she obtained a decree of divorce (copy attached and made a part of the bill) on the ground of his adultery, entered February 27, 1928, by a Massachusetts court; that in the divorce proceedings, instituted October 17, 1927, Hayes appeared by counsel and subsequently signed and filed in the cause a certain stipulation or alimony agreement (copy attached, etc.); that in the divorce decree it was provided that it should become final, and it did become so, on August 27, 1928; that therein complainant was awarded the care and custody of said minor child; that therein it was provided that Hayes should pay to complainant $4,500, \u201cin full settlement of all claims for alimony, past, present and future, counsel fees and court costs,\u201d and said sum was paid; that therein it was provided that Hayes also should pay to complainant certain monthly sums for the care, support and education of said minor child until the latter became of age, to wit, until May 1, 1942; and that neither the agreement nor the decree released or purported to release or waive \u201cany dower rights or inchoate dower rights\u201d of complainant in any real estate owned by Hayes.\nComplainant further alleged that the trust deed of July 1, 1927, conveying the real estate to the Chicago Title & Trust Company, as trustee, to secure said bond issue, is \u201cfraudulent and void, in that it represents that dower rights of the wife of said Hayes have been released,\u201d and in that it \u201cfraudulently attempts to deprive complainant of her inchoate right of dower in said premises\u201d; that when said deed was executed Hayes knew of the existence of complainant\u2019s inchoate right of dower; and that he \u201cfraudulently attempted to deprive\u201d complainant of her said right \u201cby permitting or procuring\u2019 the signature of said Maurine Geinzer to said deed as his legal wife.\u201d And complainant further alleged that Hayes executed a second mortgage trust deed, dated July 12,1927, and recorded August 25, 1927, conveying said freehold and leasehold estates to the Progressive Bond and Mortgage Co., as trustee, to secure an indebtedness of $62,800; and that he also fraudulently permitted or procured said Maurine Geinzer to sign the same, \u201cthereby fraudulently purporting to release complainant\u2019s inchoate right of dower in the premises.\u201d\nComplainant\u2019s counsel contends that the' court erred in sustaining defendants\u2019 general demurrers to complainant\u2019s bill and in dismissing it for want of equity because the first mortgage trust deed of July 1, 1927, on the premises involved, is void, it having been executed in fraud of complainant\u2019s dower right therein (the same not having been relinquished by the divorce decree of February 27, 1928), even though such right is inchoate. Although admitting in substance that \u201ca wife\u2019s inchoate right of dower before it has been consummated by her husband\u2019s death-is a mere intangible, contingent expectancy, and not only is not an estate in land but does not even rise to the dignity of a vested right\u201d (Bennett v. Bennett, 318 Ill. 193, 197; Taylor v. Taylor, 223 Ill. 423, 426), and cannot be asserted during the husband\u2019s lifetime (Haller v. Hawkins, 245 Ill. 492, 494; Lohmeyer v. Durbin, 213 Ill. 498, 500), yet counsel argues that such an inchoate right may be made the basis of a suit to set aside a deed \u201cexecuted in fraud of her marital rights.\u201d As applied to such well pleaded facts as are alleged in complainant\u2019s bill, we do not think there is any merit in the contention or argument. While it has been decided in this State that a deed made by one on the eve or in contemplation of marriage, which if uncanceled actually would deprive the wife or husband (as the case may be) of dower rights, may under certain circumstances be set aside as in fraud of marital rights (Freeman v. Hartman, 45 Ill. 57, 59; Higgins v. Higgins, 219 Ill. 146, 151), the present bill does not allege such a case. It therein appears that the trust deed sought to be set aside was executed and delivered by Hayes long after complainant\u2019s marriage to him in July, 1920, and before her divorce from him, and that he obtained title to both the freehold and leasehold estates in February, 1927. When he obtained that title her inchoate right of dower immediately attached to the freehold estate, and only to that estate. (Section 1, Dower Act, Ca-hill\u2019s St. 1925, ch. 41, H 1, p. 937; Thornton v. Mehring, 117 Ill. 55, 59.) It is further alleged that complainant, then Hayes\u2019 lawful wife,- did not join in the trust deed of July 1, 1927, and that she never released or relinquished her inchoate right of dower in said freehold estate. If so, she still has her inchoate right of dower therein. And she does not allege in her bill any facts showing that the execution and delivery of the trust deed by Hayes actually deprive her of such inchoate right. Practically all that is alleged is that Hayes, in executing the deed, and in procuring Maurine Geinzer as his purported wife to join therein, \u201cfraudulently attempted to deprive\u201d her of such inchoate right. Furthermore, it is the law of this State, as well as in other States, that a husband has the legal right to convey or mortgage any of his real estate without the wife joining in the deed to release her inchoate right of dower, and'that, as against the wife, no fraud can be predicated upon the exercise by the husband of such legal right. (Haller v. Hawkins, 245 Ill. 492; McLanahan v. Griffin, 168 Ill. 31; Deke v. Huenkemeier, 260 Ill. 131; Weyer v. Barwell, 327 Ill. 214; Schackleford v. Morrill, 142 N. C. 221;-King v. Chandler, 213 Ala. 337; Warner v. Trustees of Norwegian Cemetery Ass\u2019n, 139 Iowa 115.) In the Haller case the husband conveyed by deed certain real estate to Hawkins, and in the deed and certificate of acknowledgment were the false statements that the grantor was \u201cunmarried.\u201d The wife did not join in the conveyance and did not have knowledge- of it at the time or of said false statements, and the court held (p. 494) that during the husband\u2019s lifetime she \u201ccould not have asserted her right of dower,\u201d and that after the husband\u2019s death (she then being living), neither said false statements in the deed and certificate of acknowledgment \u201cnor any other fraud of her husband, not. participated in by her, could prejudice her right of dower.\u201d In the Deke ease (p. 137) it is said: \u201cThe law is well settled that a husband may convey his real estate without his wife joining him, and if there be no homestead, the conveyance will vest the grantee with a fee simple title, subject only to the dower of his wife, should she survive him.\u201d In the Weyer case (p. 217) it is said: \u201cIt is settled in this State that the husband cannot without her consent deprive the wife of the inchoate right of dower conferred by the Dower Act, although the fee in an estate may be disposed of subject to that right. . . . Such inchoate right ripens into a legal vested right on the death of the husband.\u201d In both the North Carolina and Alabama' cases, cited above, the husband had executed a mortgage- on his real estate, without the wife joining in the deed or without any release by her of her dower right. The wife claimed, as here, that the mortgage was void as being in fraud of her marital rights, but in each case it was held that the mortgage was valid subject to the wife\u2019s dower right.\nOther points are made by counsel for the three defendant corporations, as reasons for the action of the court in sustaining the demurrers to complainant\u2019s bill and in dismissing the bill for want of equity, but, in view of our foregoing holdings and decision, we deem it unnecessary to discuss them.\nFor the reasons indicated the judgment of the superior court is affirmed.\nAffirmed.\nScanlan, P. J.,. and Keener, J., concur.", "type": "majority", "author": "Mr. Justice Gridley" } ], "attorneys": [ "Hugh J. Daly, for appellant.", "Sylvanus George Lee, for appellee Harold C. Hayes. Sherman C. Spitzer, Edmund J. Reynolds and Brown, Fox & Blumbebg, for Chicago Title & Trust Company, as Trustee, and Wollenberger & Company, appellees. Hummer & Hummer, for Progressive Bond & Mortgage Company, Trustee." ], "corrections": "", "head_matter": "Katherine F. Hayes, Appellant, v. Harold C. Hayes et al., Appellees.\nGen. No. 34,326.\nHeard in the second division of this court for the first district at the October term, 1929.\nOpinion filed January 27, 1931.\nHugh J. Daly, for appellant.\nSylvanus George Lee, for appellee Harold C. Hayes. Sherman C. Spitzer, Edmund J. Reynolds and Brown, Fox & Blumbebg, for Chicago Title & Trust Company, as Trustee, and Wollenberger & Company, appellees. Hummer & Hummer, for Progressive Bond & Mortgage Company, Trustee." }, "file_name": "0600-01", "first_page_order": 634, "last_page_order": 640 }