, 1879-04-05
THE COURTS.
An Appellate Court Decision In Favor
of Mrs. Clybourn
Which Will stir Up Property.0Uners
: oil tho Nortl, Slide.
Dccixiou In the Case Of Libby W.
Coolbaugh.

Coolbaugh.
Record Of Judgments, New Suits, and
Other Matters.
The opinion Of the Appellate Conrt, IL the
easc of Mary CIybourn ". The piltshur0. Fort
Wayne & Ch!csgo Railroad Company, was a!ed
vctserhny. THIS was pstitton fur DOVER, tlled
by Mrs. Clfbo,lrn, widow oE Archl,asl Ct7hourn,
In Lot 3, Dlock II. In the Subdivision Of School
Sectiun 10, 70, Il. She was married. In 1922, md
hor husb!ktl ,l,cd In 1871. The land Ia question
vns conveYed ny Mr. ClYhouen Ia 1885 to Carrot
BIAS, and then BY nesno convcSances to tie
railroad. Mrs. Cfyhourn joined In the deed
with tcr husband, but, owing to defects ID the
acknowledgment, tho tceI was imperative as
10 her. The only question WIS rs 10 whether
Clybourn lad such legal or equitable estate
In the land as to cnti1'o his wife to dover there.
In. THO Court below found fur the railroad,
md Nirs, CIybousn appealed. The lot In ques-
tiou was part Of the scliool land granted BY the
United Statca to the State OF Illinois,
u,,d Clybortn got his title direct
from tile sc.ool Commissioners Of Cook
County at q public sale of school lauds held
Oct, "a, 1888. By the terms Of tile sa1a tsle
purchase money was payablo in one, two. and
three ycars. with 10 per cent interest Ii ad-
vance. Clyoousn bought bis lot for sl51, paid
10 Der cent interest in advance. and gave threo
notes secured by indoracr payable in ono, two,
aud three years. for the purchase prlce. In
$3.50, something moro than year after thu decd
to Bias, Il patent for the Int Was issued to ely
bousn In accordnuce with the original certificate
Of purchase. As, however, the decd to Bias
opcrated as m assignment of tile certificate TO
Clybourn and as o conveyance Of the lattcr's
c1uttnbo interest, the patent subsequently
granted could only enuro to the benefit OF Cly-
bousn's grantee.
Judge Bailey, In delivering the opinion Of the
Appellate Court, said:
Tie law undoubtcllr Is, that widow can only
be endowed Of MI estatr Of inheritance II the
husband Is seized Of an equitable estate moralv,
1t must be such estate us would dcsrend, ut his
death, to hts heirs at law as rca! estate, instcnl
Of going to his personal representatives aa n
cl,attel interest or chose in action. In other
words, 1t must he sucl, equitable estate as would
cntitle the husband to hetnveslcd with tic legal
title. Where the husbaul holds land under a
contract of purchase, n:ld transfers such cou-
tract before hc has complied with It's terms, and
before he Is iu position to compel conveyance
9,o-inr1,anen ny ths ,~,,nv "" pot it';
~ nnwrr' II. hnwevrr, Tim hushnu1 AZ th,
time OF the transfcr had d right, to be invested
nj n" cnnTaranre NJ s,,ch ,,tle fn him.sff H.,
rirh. NJ 'jntycT ottachrss II ia nrcn,. f,,cn'
fhn, IT, w link st,rv m Tho tcrns ~ ,t' ccrtin
cate OF purchase In this casc. md determine the
in,at br hi.l,l fhn, mn ru,ht al 'Inwer nttnrhrti
sn inr na thnt tuairrms"i ahnwe,i' CI rhnmrn ,sos
,,ot cutI,,"i to nofant tnvnattntr lin wttj, III.
,n.rchns. r,nnnv sho,, ~ mid iii /, ,,,ii ",u thn
record fals to s,luw a,,r1, M, ,mert prinr fo thc
conrrrn,,"" IN nIna. ia thinr hnwrver tne
statute ,indrr whirh tie Schoui rnmtnfssanrrs
crr1l,t ..n.ts,"h ~: n,,rchnacr to m,,sn. on.
vsSim,, RI him } r.ni ;i,ic he tnstant I'm aalc
,v;s ..6nsnn,mntcd ''''~ 1'e 'A's~"S '''s s'1'
III" ~, nmthnr,7tno n c,catt ~, so,e. of
fi"t whnnnv.r ,. innobt,anis r ~ tn,pn.nia
,"tt,m1fT4 f,,r liza a.Jo ~ sI s,Stoan,h sn.1,i,
.,m,,i1 T." ~ nn,njo" ti,at thr,r tnIerast wn"jt'
H. nromo,r, hp sniiin" % ea, scetIn, ~, y rr"uit
wharea,,son Il shaul] r.. ,s 'iuty ~ nf t Tam.
tnis ssfTr:r r., .si s,,.,, f,tis M n crnlt ~ avn
tro , thr"" t"ars '" tS,a ,",rat,aser osuns 10 ', y
@ n,or,encn ~, lin ismi mnI ,.om1 ~. ;.
.m,.f ."crri,y for tl,o nn",o4st , NJ r,ia
mrai,asu ] .I',anev. l. A,1Mms p'1 nnrhan,'s ~
(,""i Es,nt" Stat vi Ia mn"i1rs,
tI,"i t,,a stotut. nrntcm1,,,od t,, IN, ,n,mtt, :,
eonyovnncc TO The nur,hnscr Of t,,e lcral f,tlc
foE IN NJ other way could effect be given to Inc
provision requiring .e purchaser to secure the
purchase money hy tnortgugs on ttr la1ul. This
ltatutu WINS vo,iataered by the Supreme Court In
ill.,. clsc vi Tie pronu ~, Tic Audttor q Hram
6G7l, and It was tlserc held that where luu1s
we're sold BY tile School Commissioner. ouc-
tuurth Of tic purchase ,noney ur!ng paid III
hatid md vrcd,t Vi one, twt', alni thrr. years
given for lie baAneu, nti certificates tluliycrel
to the purchasers runtlnng u stipulation that,
upon thu payment u tl,r remainder ot lie bur:
claso 1nanuy, patuuss shou.u bu issued to tue
butpflnhrrS, tEt certificates Bhtulu not Dc under
stood NJ Ii, nny tnauusr affecting tho prov!au,,s
Dl the uvt ol ls:s), requiring ll,e Auditor
to forward the pateu,s when ,lG received to ~
turns vi tile Srllool Commissioners, or ns re-.
etruint,lg Tim IRON Iss,,ng tllrm bcfore the c1-
pirati,,n Ut the term at credit. II wuull seem,
ucu, ,llat, tu the preseut tasc, Notwithstanding
tile form Of thu certificate Of purchase Issued by
The School Commissioner 10 Ciybour1l, The
Auditor had the power, nl It was lis sll,ty, to
issuo patent tie instant he rcccirrd Ill. re.
turns VI salo from the hands Of tic Co,nm..
siuner. On receipt OF lis ratout II would
uoilbttess hare been incunbeut on tie p,r.
cl1aser to execute mortgage fur tho plrctlase-
JuuneY. Tie right which le acau[reI by tho