98 Ill. 317 | Ill. | 1881
delivered the opinion of the Court:
This was an action of ejectment, brought by John C. Goltra against DeCondray C. Green and William Ferguson, to recover the possession of certain real estate in the county of Morgan, on the trial of Avhich judgment Avas rendered for the defendants, and plaintiff appealed. The plaintiff claims title under a sale of the property by virtue of a decree of foreclosure, wherein John W. Goltra Avas complainant, and DeCondray Green and Sarah E. Green his wife, were defendants. The defendant' Green claims a homestead estate in the premises, and Ferguson is a mere tenant of Green. It appears, that on the 10th day of January, 1877, Green Avas indebted to John W. Goltra in the sum of $4000, and to secure the payment, he gave a note due in one year, and a mortgage on the property in controversy, which was executed by himself and wife.
The note not having been paid at maturity, John W. Goltra filed a bill to foreclose the mortgage, in which Green and his wife were made parties. It was alleged in the bill that DeCondray Green, and Sarah E. Green, his wife, being seized in fee simple of the premises described in the declaration, conveyed the same to complainant in fee simple, subject to a condition of defeasance, etc.
The defendants, in their answer, admit that they executed a mortgage to John W. Goltra, on the date mentioned, on the premises described in the bill, but did not convey the premises in fee simple, as alleged. It is then set up in the answer that at the time the mortgage was executed, defendant Green was occupying the premises with his family as his homestead, and he and his family still reside upon and occupy the premises as their homestead. That in and by the mortgage the defendant Green did not waive or release his right of homestead under the homestead laws of Illinois.
That the mortgage debt is for borrowed money, and not for the purchase money. The defendant also filed a cross-bill, in which substantially the same facts were alleged as set up in the answer. A replication was filed to the answer, and an answer to the cross-bill, and the court on the hearing found that the allegations of the bill were true and that the equities of the case were with complainant. The amount due complainant was ordered paid within a certain time, and in default of payment the premises were decreed to be sold. It was further decreed that the defendants, and all persons holding under them since the commencement of the suit, be forever barred and foreclosed from all equity of redemption and claim of, in and to the mortgaged premises. Under this decree the premises were sold to the mortgagee, complainant in the bill, and upon the expiration of fifteen months allowed for redemption, no redemption having been made, he obtained a master’s deed. He then sold and conveyed the premises to John C. Goltra, who brought the present action to recover the possession of the property. On behalf of the defendant it is contended that the pleadings in the foreclosure case did not put in issue the question of fact whether Green had or ever had a homestead estate in the premises, nor did the decree rendered adjudge that question. On the other hand it is insisted by the plaintiff that the question of Green’s homestead right in the premises was res adjudicata, and, however so erroneously decided, it was nevertheless binding upon him, and his remedy was by appeal or writ of error to reverse the decree if there was error, but that such error could not be asserted in this action against an innocent purchaser for value.
If the estate of homestead was one of the issues presented by the pleadings in the foreclosure case, and was passed upon by the court, the decree thus rendered by the court is conclusive upon the Greens, who were parties to the chancery proceedings, so long as it remains unreversed, and that, too, regardless of the fact whether the decision was right or erroneous.
The court had jurisdiction of the parties, and the subject matter of the litigation, and the correctness of the decree can not be called in question in a collateral proceeding like the present action.
It is true, the bill does not, in terms, contain averments which would put in issue the question of defendant’s homestead, but the bill contained a general allegation which was broad enough and sufficiently comprehensive to present that question.
The bill alleges that DeCondray Green, and Sarah E. Green, his wife, being seized in fee simple of the premises, conveyed the same to complainant in fee simple, subject to a condition of defeasance, etc. A conveyance in fee simple pdtsses the entire estate held at the time the deed is executed by the grantors, in the premises conveyed, which would of course include a homestead. In other words, the averment in the bill is equivalent to an averment that the homestead was released. West v. Krebaum, 88 Ill. 263.
But had the bill been silent- in regard to the homestead, the answer of the defendants pearly presented an issue of that character for- the determination of the court under the evidence bearing upon the question.
The answer, in express terms, declared that the defendant, at the time the mortgage was executed, was occupying the premises, with his family, as a homestead, and that he and his family still continue to occupy the premises as their homestead; that the homestead was not released in the mortgage. Under this answer there can be no doubt in regard to the fact that the pleadings in the foreclosure case presented the identical question which the defendants are relying upon here to defeat the action of ejectment, namely, that the premises are defendants’ homestead, and were so occupied when the mortgage was executed, and the homestead was not released in the manner provided by law.
It is, however, contended that the decree rendered in the foreclosure case, did not adjudge or determine the homestead question. It will be remembered that it was alleged in the bill that the premises were conveyed to the complainant in fee simple, which, as we have before seen, would include a release of the homestead. The decree finds the allegations of the bill to be true. That being the case, it follows that the court from the evidence found that the defendants had conveyed their homestead right in the premises to the complainant in the bill.
Again, that provision of the decree which directs that the premises be'sold and that the Greens shall be barred, forclosed, and cut off from all equity of redemption and interest in the premises, is comprehensive enough to include all homestead rights which the Greens had in the premises. As was said in West v. Krebaum, supra : “An order to sell all one’s interest in land, or an averment that one has conveyed all his interest in certain land, may include within its terms his'homestead interest, if he have any, because that would be a part of his interest.” We are of opinion the decree was broad enough to include, and did include, all right, title and interest held by the Greens in the premises, and they are concluded by the decree. If the decree was erroneous, the only remedy in the hands of the Greens was to appeal or sue out a writ of error. They can not, in an action of ejectment, where the decree is called in question collaterally, avail of an error; but on the other hand, where the court has jurisdiction of the parties and the subject matter, its decree must be held conclusive until reversed on appeal or writ of error.
The judgment of the circuit court will be reversed and the cause remanded. „
Judgment reversed.
Mr. Justice Scott : I do not concur in this opinion.
