37 Ill. 73 | Ill. | 1865
delivered the opinion of the court:
The facts in this case are, that the defendant in error, being indebted to Ives and Dennison, to secure the same, on the 9th day of April, 1859, executed and delivered to them, a mortgage on lot three, (3) in block fourteen, (14) in Turner’s addition to the town of New Boston, in the county of Mer-' cer. It was the homestead of Mills, and the mortgage contained no waiver of it. Mills and his family continued to reside on the premises, until in the spring of the following year, when he removed to the country and rented1 a farm. In November previous, Mills sold to, or exchanged with one Scudder, the premises, for eighty acres of land in the Territory of Nebraska, but on ascertaining the title was defective, the contract was rescinded in August or September, 1861.
The plaintiffs now insist, that the defendants in error cannot claim the benefit of the homestead act, by reason of this • sale to Scudders, and though the contract was rescinded, they were not thereby, rehabilitated to their former rights.
In one of the first cases decided by this court, under this homestead act, we held, that an abandonment of the homestead, will not he presumed from the fact that the head of the family has gone in search of another home, and being disappointed, returns to the old home. Kitchell v. Burgwin and wife, 21 Ill., 40. In what way could the mortgage affect this right ? What rights did the mortgagees acquire by this sale to Scudders ? Did they acquire any, they did not possess before the sale ? We think not, and as the defendant in error had the capacity to sell and convey his homestead free from the mortgage, the mortgage not containing any relinquishment of the homestead right, could not affect this right. It was inoperative as to it. The principles of the case of Green v. Marks, 25 Ill., 226, are applicable to this case, and must control it. The verbal agreement to pay the mortgage, was not made to the mortgagees and was not binding, and when the lot was reconveyed, such agreement was virtually rescinded, and by the reconveyance, the defendant in error was put in the position he occupied before he conveyed.
The judgment of the court below is affirmed.
Judgment affirmed.
having tried the cause in the court below, took no part in this decision.
