50 Ill. 521 | Ill. | 1864
delivered the opinion of the Court:
Complainant has no separate interest in the premises, or right to its occupancy, that will authorize him to file a bill in his own name, to enforce the right of his wife to the benefit of the homestead act. If Mrs. Eyster and himself have a right to claim the premises as a homestead, they should join in exhibiting a bill for its protection. Unless she were before the court, no decree could be rendered affecting her rights in the premises. If the settlement of her right to hold the homestead is sought, she should have been a complainant in the bill. For this reason, the court below committed n,o error in dismissing the bill.
If a bill were properly framed, alleging fraud, duress or undue influence of the husband in procuring her release of the right of homestead, and the bill were sustained by proof, it would seem that a decree might be rendered cancelling that portion of the deed and certificate that states that she released her right or claim to the premises as a homestead, or if a bill were filed by the holder of the deed of trust, it might, perhaps, be set up as a defense, but a reformation of a deed could not be had in such a suit, except by a cross-bill. It is a familiar maxim of the law, that fraud avoids all transactions, even records themselves. Then, if a record may be impeached for fraud, no reason is perceived why the certificate of acknowledgment to a deed may not for the same reason. It was so held in Souden v. Blythe, 16 Penn. R. 532; Shroder v. Jameson, 3 Wheat. 457; Swift v. Cassell, 23 Ill. 242. And inasmuch as a deed may be avoided for duress, the same would seem to be true if an acknowledgment of a deed were procured by that means.
It was insisted that the money to secure which this deed of trust was given, was purchase money, and the premises, in any event, are liable to be sold for its satisfaction. If it were established that the money borrowed by appellant from appellee, was paid to Redick for the land, still it does not follow that it was purchase money. It appears that the premises were purchased of Rediclc, and the money for which this debt was incurred was paid on the last instalment due on the purchase.
The statute, in declaring that the homestead right should not be claimed against a debt due for the purchase money, obviously used the language in its ordinary and popular significar tion. All persons understand the term purchase money to mean the price agreed to be paid for the land, or the debt created by the purchase. It is not understood to mean a debt due another person than the vendor. In this case, the debt was created for money loaned, and not for land purchased. Appellee sold no land to appellant, but he loaned him money.'
It could not matter, in this indebtedness, whether the money was subsequently paid for the same or other property. There is nothing in the case which shows the relation of vendor and vendee between these parties, and this provision of the statute only applies to parties occupying that relation, or those representing them, and for a debt created by the purchase of the homestead.
The decree is affirmed.
Decree affirmed.