| Ill. | Apr 15, 1865
delivered the opinion of the Court:
The question of alimony had been settled, and each party had assigned to them portions of the property, to hold in severalty. Neither had any claim to that held by the other. It is true that the portion held by Blue was charged with all of the incumbrances upon the whole of that tract. This imposed the obligation upon him to remove the incumbrance upon the portion assigned to appellant. Nor could he escape that liability by having it conveyed to any other person. Nor did Wakefield acquire any lien upon the property by simply having the conveyance made to him, as there does not appear to be any evidence that he paid a consideration for the property; and it has every appearance of a fraud upon the rights of appellant.
But even conceding that he paid a consideration for the conveyance from Phelps, he took it subject to the rights of appellant under the decree, as he is chargeable with notice of the decree and its provisions. Being chargeable with notice of the decree, he could by an assignment of the contract by Blue and a conveyance from Phelps, acquire no better title to appellant’s portion of the premises than was held by Blue. He acquired nothing but the mere legal title to appellant’s portion of the land, and is in equity bound to convey it to her. In so decreeing the court below committed no error.
We are unable, however, to understand upon what principle Wakefield was bound to convey the remainder of the tract to her, or that she should have the estate in that portion in fee or for life. If she contributed to remove the incumbrance from the land, to protect her own interests, she has no doubt a lien upon the portion set apart to Blue, to have it refunded, but the payment of thirty-seven dollars for that purpose could not entitle her in equity to property costing near a thousand. It cannot be said, and we presume it will not be contended, that if one person attempts to defraud another, however immoral and reprehensible the act, such person forfeits his property to the other.
Had appellant been compelled to pay all of the purchase money on the contract, to protect her rights, it would be otherwise, not because the fraud was attempted, hut because she had paid the purchase money for the land. But to say that because she had paid thirty-seven dollars of the purchase money, on a purchase of land for so large a sum, gives her the right to have the title to the whole property, would be as inequitable as to permit Blue to defeat her title by assigning the contract. If the sum she claims to have paid, was applied to the purchase she has a right to have it refunded, and the court below should have ascertained that fact and decreed accordingly.
If the right to have it conveyed to her is based upon the ground that the children are entitled to the remainder, it is equally untenable. Blue was entitled to hold his portion for life, and he did not forfeit that right to her by attempting to cut off their estate in remainder. If the children were to file a bill, they no doubt could, on a proper showing, have their rights established and protected, but they are not parties to this bill, and the court for that reason was not authorized to render a decree in their favor. Nor does this decree or any other which the court might have rendered, so long as they are not parties, affect their rights. As to this tract, we see no reason for reversing the decree of dismissal.
If this transcript is correctly copied, one forty acre tract of land was levied upon and sold, whilst a different tract was conveyed by the sheriff to Merriman. The levy and certificate of purchase describe the land as the N. E. qr. of the If. W. qr. of section 34, and the sheriff’s deed to Merriman and his deed to appellant, convey the S. E. of the If. W. qr. of the" same section, and the decree setting apart appellant’s alimony, follows the latter description, so that be the true description as it may, no title to this tract was vested in Merriman by the sale under execution, nor did his conveyance to appellant pass any title.
The eighty acre tract seems to have been truly described and passed the title unless it was exempt from such a sale under the homestead law. At the time the levy and sale were made, Blue held the bond for a title, had paid a portion of the purchase money, was the head of a family residing with them upon the land, using and occupying it as a homestead. On the one side it is claimed that this was such a title and homestead as exempted it from levy and sale, whilst the other insists that he was not the owner within the meaning of the statute. He had such an interest in the land as the statute has rendered liable to levy and sale on execution, unless protected by the homestead law. (Scates’ Comp. 602.)
When the reason for the adoption of the homestead law is considered, no reason presents itself to our minds, why it should not be exempt. The object in adopting the act was to secure to the debtor and his family a home, not worth more than one thousand dollars. Such a case as this falls fully within the mischief of the old, and is clearly within the reason of the new law. And whether the" debtor held in fee simple absolute, for life or for a term of years, the reason for affording the exemption applies with equal force. Here Blue was rightfully in possession, under a contract of purchase, and we think was the owner within the meaning of the statute.
It is, however, objected that there is no evidence to show that this tract was worth only one thousand dollars or less. This cannot vary the result, as if it was not worth more than that sum the sale was prohibited by the statute, and if worth more, then none of the requirements of the statute were observed in making the levy and sale. So that in either view the sale was unauthorized.
It is, again, contended that the husband, by committing adultery, forfeited his right to claim the benefit of the homestead law. We are referred to no law or adjudged case announcing such a rule, nor is it believed that any such exists. If or can we see how a stranger to the estate could be benefitted by his infidelity to the marriage contract, even if he had suffered a forfeiture. If such a forfeiture was created in this case it operated to defeat the wife’s right to claim the homestead as well as his. And the law has clearly placed it beyond the power of the husband to deprive the wife of that right so long as it remains their residence, and it was such when the levy and sale were made.
If this piece of land was worth over one thousand dollars, Merriman by his levy and sale acquired an equitable lien upon the surplus, which he had the' right to enforce as soon as it ceased to be a homestead. And when appellant purchased of Merriman she acquired the lien and may enforce it against such surplus. The court below should have ascertained the value of this property, and if it exceeded one thousand dollars, he should have declared the "amount paid by appellant to be a lien on the surplus, and decreed its payment out of the portion assigned to Blue, as it had been previously, by the agreement of the parties and the decree of the court, charged with all incumbrances, and in default of payment the property should be sold, subject to the rights of the children.
The last error assigned questions the correctness of the decree requiring appellant to pay one-third of the costs. In such a case that is purely a question of discretion in the court. By the 15th Section of the cost act (R. S. 128) it is declared, that upon the dismissal of the bill by complainant, or by defendants dismissing it for want of prosecution, the defendant shall recover of the complainant his full costs; but in all other cases in chancery, not otherwise directed by law, it shall be in the discretion of the court to award costs or not as shall be just. This was on a final hearing, and we have been referred to no law, nor are we aware of any, that has provided how the costs on such a hearing shall be awarded, hence, by this section it is a matter of discretion.
Inasmuch as appellant paid thirty-seven dollars to Phelps, to prevent a forfeiture of the contract for the eighty acre tract, the court below should have rendered a decree for that amount at least, and failing in this, there was error in the decree, which must be reversed and the cause remanded.
Decree reversed.