| Ill. | Apr 15, 1863
delivered the opinion of the Court.
~Wq are now presented with a new question under the homestead law. Ever since its enactment, we have endeavored to administer this law in that spirit of liberality which manifestly influenced the legislature in its enactment, without frittering away its benefits by construction, because we might not, as individuals, approve its policy. This was for the legislature to determine, and we cordially accept that determination, and will faithfully discharge our duties, by fairly enforcing the law in its true spirit and intent.
No one can doubt, who will carefully examine this legislation, that it was the object of the legislature, especially to throw a shield and protection around the wife and children, even more than the husband. To those, they designed to secure a home, in spite of the husband and father, and in defiance of the world, unless it should be expressly, and understandingly, released by the wife, in the mode provided by the statute, or unless she removed from, and abandoned it, as a home. In one of these modes alone, does the law design that the right shall be lost to the wife and children. This right was designed by the legislature to be as sacred as the right of dower, and from similar considerations of public policy ; and occurring events, which are filling the land with widows and orphans, solemnize the policy which dictated the law, at a time when no such occasion existed to suggest its propriety.
This mortgage, as to the homestead right, is like a mortgage in which the wife has not released her right of dower, when sought to be enforced in defiance of that right. Suppose in such a case the wife were made a party to a bill to foreclose a mortgage, without any averment that any right of dower existed, or that the wife had released her dower, and a decree passed against the husband and wife, foreclosing thg mortgage and ordering a sale of the premises. No one would contend that the right of dower would be affected by 'such decree, or that a sale under it could convey the premises freed from the right of dower, and for the simple reason that the law has provided a different and an only mode for the release of dower. So here, the statute has provided another^ different and only mode, for the release of the homestead right, while the premises are occupied as a homestead. The husband cannot, by failing to make defense for himself and wife, give the mortgage, in which the wife has not released the homestead, the same practical effect that it would have, had she thus released. This would be to defeat the statute and its manifest object, by a mere legal form. By this law the homestead is placed beyond the control of the husband, and he cannot be allowed to destroy this right indirectly,' any more than directly — by act of omission more than commission — save only, by one mode, which is, by removing his family from it, and with the design that it shall thereby cease to be a homestead, and perhaps, providing them with another home. If this be the true construction of the law, even this decree did not impair the homestead right, although, as it was an apparent cloud upon it, it was proper for the court to set it, and the proceeding under it, aside.
The order is affirmed.
Decree affirmed.