¶1delivered the opinion of the court:
¶2On May 29, 1893, one Demeter Trendle died seized in fee of certain premises in the city of Peoria, and left him surviving Lena Trendle, his wife, and several minor children, his only heirs-at-law. On February 14, 1894, his widow, who had a dower and homestead interest therein, leased said premises to the Union Brewing Company for the term of five years, and the company took possession and paid rent according to the terms of the lease. On the day of the execution of the lease Mrs. Trendle agreed with the lessee, by a memorandum in writing, to acquire the legal title to the property she had leased. On June 22,1895, the administrator of the estate of Demeter Trendle applied to the probate court for permission to sell the said premises to pay the debts of his intestate. The Union Brewing Company filed an answer to the petition, claiming to hold under the lease from Mrs. Trendle. The court, however, ordered the premises sold subject only to the widow’s, dower and homestead interests, and free from said lease. At the sale appellee bought the premises, and the widow immediately quit-claimed to him her dower and homestead interests therein. Appellee thereupon brought this action of ejectment against the Union Brewing Company and its tenant, the appellants herein, for the possession of the property he had purchased. To the declaration the general issue was pleaded. The cause was tried in the circuit court of Peoria county before the court, without a jury, and judgment was rendered against the appellants, who bring this appeal.
¶3When the lease to the Union Brewing Company was executed, the dower and homestead of Mrs. Trendle had not been assigned or set off to her, and the lease, therefore, conveyed no estate whatever to that company, for it is a rule of property that a surviving husband or wife cannot sell and convey the right of dower and homestead to a person other than the owner of the fee, or lease the same, before the dower and homestead have been set off and assigned. (Best v. Jenks, 123 Ill. 447.) Again, the appellant company was a party to the proceeding wherein it was decreed that the said premises should be sold free from the lease, and, not having reversed that decree, is bound by it.
¶4The memorandum, wherein Mrs. Trendle agreed to purchase the lega-l title to the property, was a mere ex-ecutory contract, and gave no right of possession. If it conferred any equitable right it would have to be enforced by suit in equity, and for its breach the only legal remedy would be a suit for damages.
¶5It is urged that since the statute (chap. 45, sec. 19,) provides that a defendant in ejectment may plead the general issue, and under such pleading may give in evidence any matter that may tend to defeat the plaintiff’s action, except as in the chapter otherwise provided, therefore the trial court erred in excluding evidence tending to show that appellee purchased the premises with means procured from Mrs. Trendle, and took title in his own name for the purpose of defrauding the appellant company out of its lease. As we have seen, the appellant company had no valid lease. The supposed fraud only goes to the consideration that was paid for the premises, and therefore was not an element of inquiry or admissiblé in proof in this action of ejectment. (Escherick v. Traver, 65 Ill. 379; Reece v. Allen, 5 Gilm. 236.) The case suggested by the proffered testimony was not one of a deed that is a nullity because of fraud used in its procurement. The excluded evidence was immaterial, and there was no error in the action of the court.
¶6The judgment is affirmed.
¶7judgment affirmed.