147 Ill. 52 | Ill. | 1893
delivered the opinion of the Court:
The evidence in this record clearly shows the premises were occupied by J. McKendree Crane and wife as a homestead, and were in value less than $1000. The testimony shows that a deed signed by J. McKendree Crane and wife contained a clause relinquishing the homestead right, but there is no evidence to show that the acknowledgment, as claimed to have been made by the notary public, contained any clause with that relinquishment. By the Conveyance act it is requisite that in the deed there shall be contained a clause waiving the right of homestead, and a similar clause must be contained in the acknowledgment of both the husband and wife, and the estate of homestead thus created can be relinquished only in the mode pointed out by the statute, or by abandonment. This rule is sustained by the uniform decisions of this court. Richards et ux. v. Green, 73 Ill. 54; Eldridge v. Pierce et al. 90 id. 474; Trustees of Schools v. Hovey et ux. 94 id. 394; Browning et al. v. Harris et al. 99 id. 456.
Where a bill is filed to restore a deed, by which deed a. conveyance of the homestead is sought to be consummated, the proof must be such that it must show a deed that would be sufficient to convey the homestead, not only by evidence of the relinquishment of the homestead in the body of the deed, but the acknowledgment must contain a relinquishment of the homestead acknowledged by the husband and wife. The evidence also shows that the husband of the complainant, with a notary, accompanied J. McKendree Crane to his house, and that others subsequently came to the house, and for more than one hour efforts were made to induce the wife to sign the deed, which had been prepared before the visit of the husband, with the notary, to the house, and the proof clearly shows that at the time J. McKendree Crane was much intoxicated, and that both he and complainant’s husband sought to induce Mrs. Crane to sign the deed by persuasion, and that, further, complainant’s husband said that he had purchased the property and that it would save her trouble if she would sign it, and that threats of abandonment were made by her husband, and other threats were made by him unless she signed the deed, and during this period of time of more than an hour, in which these efforts were made to induce the wife to sign this deed, she was seeking to have the execution of the deed put off until next morning, claiming that her husuand was too much intoxicated to do business,1 and claiming that it was the only home she had, and in tears begging for time to be allowed to consult with her father-in-law, but, overcome by the persistence with which the demand on her to execute the deed was made, she signed the deed, and just before signing, her husband gave her twenty dollars, which was to be her own, and that sum she tendered the husband of complainant on the next morning, when he offered to pay the balance of the purchase money, he having previously paid Crane twenty dollars. There is no evidence in the record showing any acknowledgment of the deed by her other than the simple signing of the same, nor is there evidence showing any inquiry made of her by the notary. On this state of facts a court of equity may well refuse specific performance.
It was held in Fitzpatrick v. Beatty et al. 1 Gilm. 454: “Nor will a court of equity decree a specific performance where the contract is founded on fraud, imposition or mistake, or where it would be unconscientious to enforce it.” In Frisby et al. v. Ballance et al. 4 Scam. 287, it was held: “An application for the specific performance of a contract is addressed to the sound legal discretion of the court, and it is not a matter of course that it will be decreed because a legal contract is shown to exist. Indeed, the origin and ground of this jurisdiction is, that a compensation for damages is inadequate to the full measure of the parties’ equitable rights. It is not necessary to authorize this court to refuse a specific performance, that the agreement should be so tainted with fraud as to authorize a decree that it should be given up and canceled on that account. * * * A specific performance will not be decreed unless the agreement has been entered into with perfect fairness, and without misapprehension, misrepresentation or oppression.” To the same effect are Race v. Weston, 86 Ill. 91, and Proudfoot v. Wightman, 78 id. 553.
There is some conflict in the evidence as to whether the deed was taken from the table, after it was signed, by the notary public or by the husband and agent of complainant, but from the view we take of this record that question is immaterial.
The evidence in this record shows the personal property which was sought to be transferred as a part consideration was valued at $300 between Leonard and Crane, and the weight of proof shows that the value of the property was not to exceed $150; and this fact, in connection with the condition in which J. McKendree Crane was, and the circumstances under which the signature of the wife was obtained, are such that it would be unconscionable for a court of equity to order a conveyance to be made. In the absence of proof that the acknowledgment contained a clause relinquishing the rights of homestead, a court of equity can not decree the title as vested in the complainant by reason of the execution of the deed shown by the evidence. It was not error to dismiss the original and supplemental bills of complainant. And the complainant having wrongfully obtained possession of the premises as against Isaac Crane, and he being entitled to the same, it was not error to grant the relief prayed for in the cross-bill.
The decree is affirmed.
Decree affirmed.
