35 Ill. 106 | Ill. | 1864
delivered the opinion of the Court:
This court has held in more than one case, in giving a construction to the homestead act as amended, that it is necessary to the validity of the release of the right to claim the benefits of the act, that the wife should join in the deed. Patterson v. Kreig, 29 Ill. 514; Best v. Allen, 30 id. 30. The deed relied upon for a recovery in this case was executed in 1860; consequently, is governed by the amendatory act of 1857, and was executed by appellant alone, without his wife. The land in controversy was then and still continues to be the homestead of appellant and his family. This, then, brings this case fully within those decisions, in the former of which it was held, that the amendatory act prevents the alienation of the homestead unless the wife signs and acknowledges the release of the homestead, whether it be by deed of bargain and sale, or by mortgage. And the deed being inoperative, for the want of the wife’s release, a recovery in ejectment could not be had against the grantor.
A plaintiff in ejectment must recover, if at all, upon the strength of his own title, and not upon the weakness of the defendant’s. In this case appellee acquired no operative title by his deed from appellant, and it was upon this instrument alone that a recovery was sought. In , such a case it could make no difference whether appellant had any title, as the homestead was relied upon to defeat a recovery. The question of title would not arise until appellee produced a title under which he could recover, if not overcome by a better title.
The motion for a new trial should, therefore, have been allowed, and the judgment must be reversed.
Judgment reversed.
