35 Ill. 66 | Ill. | 1864
delivered the opinion of the 'Court:
The evidence shows in this case, that appellee, Anderson, together with his brother George, on the second day of May, 1854, executed their promissory note for $556, payable to one Genin, at one year, with ten per cent, interest. They executed .a power of attorney to confess judgment on the note, and a mortgage to secure its payment. It embraced the property in controversy as well as other real estate. Afterwards, on the 14tli day of April, 1858, appellees executed a deed of trust on the same premises, to secure the payment of a note to appellant for $2,734.88, of even date, and payable within two years. Default having been made in the payment of the money, the trustee proceeded to sell, when appellant became the purchaser of the quarter section of land for the sum of twelve hundred dollars, and the house and lot for one thousand.
It likewise appears, that after this sale was made, appellee, Anderson, received of appellant a lease of the house and lot for one year, at a rent of one hundred dollars. Appellant at that time surrendered the note to appellee. It appears that appellee paid to appellant, including the one hundred dollars paid for rent, the sum of $529.88. Appellant paid off and satisfied Genin’s note and mortgage. It appears that appellant, in fact, only loaned appellee $2,250, while the note was taken for $2,734.88, but it was insisted that the amount above the sum actually loaned, was ten per cent, interest compounded, added to the principal. The lot had upon it a dwelling which was occupied as a residence and homestead by appellee and his family, at the time when the deed of trust was executed, and never has been abandoned as such. After the lease had expired, appellant commenced an action of forcible detainer to recover possession of the house and lot. This bill was then filed to enjoin that suit, to set aside the sale, upon the ground that the homestead was not subject to sale, inasmuch as the wife had not released her right to claim it, and because the debt was usurious. On the hearing relief was granted, and a decree pronounced on the cross-bill for the balance due, after deducting the usury, and an execution was awarded for its collection.
The prior mortgage to Genin was a lien upon the land, but was not upon the homestead. At the time it was executed the law did not require the wife to join the husband to render the release of the right effectual; but it did require the husband to execute a release to authorize a sale of the property under a judgment or decree, and appellee failed to release the right in the Genin mortgage. Whilst the mortgage took effect as to the land it only became operative as a lien on the homestead for any sum that the homestead might have been worth over one thousand dollars.
The mere execution and delivery of a mortgage does not release the homestead.
When appellant paid and discharged the Genin mortgage, it was in conformity with the terms of the sale of the land. The trustee sold the land subject to, and the purchaser took it with the incumbrance of the Genin mortgage. And when he paid the Genin mortgage, it was only a part of the purchase-money of the land, and was not for the purpose of procuring an equitable assignment of the mortgage. The land, and not the house and lot, should bear the burden of that mortgage, because the land was purchased subject to that incumbrance. If or does this work any hardship, as the purchaser deducted the amount of this lien from the price he was willing to give for the property. And other bidders would, of course, offer that much less than they were willing to give. It would also, under the circumstances, be inequitable, to treat what' the party intended for a satisfaction as an assignment and transfer of a mortgage, and to revive an extinguished lien.
The sale of the homestead under the deed of trust conferred no title as against the homestead right. The wife having failed to release her right to claim the benefits of the homestead law, in the mode pointed out by the statute, to the extent of one thousand dollars the deed of trust failed to become a lien. If worth more than that sum, it no doubt was valid and binding as a lien upon the overplus, which could be subjected to the payment of the debt to that extent, in the mode prescribed by the statute. But as no title as against the homestead right passed by the trustee’s sale, the homestead remains as though the sale had not been made. Appellant insists that the property is worth largely more than one thousand dollars, whilst appellee insists that the latter sum is its full value.
."We, however, perceive no reason for setting aside the sale of-the land. It was authorized by the power conferred by the deed of trust. The trustee seems to have conformed to its requirements in conducting the sale, and no fraud or oppression is shown. Witnesses say it was perhaps worth twelve or fifteen dollars per acre, but at a forced sale it might have been had for less. The price given by appellant was about eleven dollars and twenty-five cents per acre, including, as we have seen it did, the Genin mortgage as a part of the purchase-money. This does not show a sacrifice of the property, requiring the interposition of a court of equity. It is not probable that it is a greater difference than usually occurs on a forced sale of such property. And unless there has been such a sacrifice as amounts to a fraud, equity will not relieve. .We think the sale of the land fair and fully within the scope of the power conferred upon the trustee by the deed, and that it was valid- and binding. The court below then erred in canceling and setting aside the sale of this land. It operated as a payment of the sum of twelve hundred dollars bid on the debt secured by the deed of trust.
But as appellant acquired no title as against the homestead right by his purchase at the trustee’s sale, that portion of the sale was properly vacated, hi or did the fact that appellee Anderson received a lease from appellant of the homestead change the rights of the parties. The wife being invested by the law with this right, she can only be deprived of it in the mode prescribed by the law. Her release of the right, a debt incurred for the purchase or improvement of the homestead, or a removal from and its abandonment as a homestead, will bar her right to interpose her claim. But the husband has no power in any other mode to affect the wife’s right. His receiving a lease and paying rent to appellant had no such effect.
It is insisted that a court of equity will not assume jurisdiction to enjoin a suit of forcible detainer, where a defense is purely statutory. Admitting this, as a general proposition, to be true, it undoubtedly has its exceptions. If the homestead right was in the husband, there would be force in the objection. But here the right is in the wife, and she has no other mode of asserting it than by bill. She is not a party to the suit at law, nor is she a necessary or even a proper party. A recovery against the husband would as effectually deprive her of the right as if she had joined in the release, at least during the continuance of coverture. Under such circumstances it is manifestly just and equitable to permit the wife to assert her rights in a court of equity, where she can alone obtain enforcement of them.
The decree of the court below must be reversed, and the cause remanded, with instructions; first, to perpetually enjoin the action of forcible detainer; next, to enjoin the assertion of any right under the Genin mortgage. That the hill be dismissed as to the sale of the quarter section-of land; that the sale of the house and lot be set aside and the lease be canceled. That the court ascertain the sum due on the twenty-two hundred- dollar note, after deducting the usury, and all. payments of interest, whether for usury or otherwise, and the rent paid for the use of the house and lot, likewise, the twelve hundred dollars for which the land was sold, and decree the payment of the balance to the appellant, and decree it to be a lien upon the homestead, over and above one thousand dollars, and direct its sale in the mode pointed out in the statute, in case it exceeds in value one thousand dollars, and award execution for any balance that may remain unsatisfied, and that the costs, in the court below be equally divided.
Decree reversed.