| Ill. | Jan 15, 1864
delivered the opinion of the Court:
This bill was filed by defendant in error against plaintiff in error and his wife, to foreclose a mortgage executed by them. Process was served upon them, they entered their appearance at the return term, and obtained an extension of time to answer for sixty days. At the next term, having failed to answer, a default was entered and the bill taken as confessed; the case was referred to the master to ascertain the amount and report to the court. His report was filed and approved, a decree for the payment of the money within ten days was entered, and on default of payment, that the master sell the mortgaged premises after giving four weeks’ notice. A sale was made subject to redemption, which was reported to the court. Upon the coming in of this report, plaintiff in error entered a motion to set aside the decree and sale, which was overruled, and the sale confirmed. To reverse the decree in this case and set aside the sale, this writ of error is prosecuted.
Exceptions are taken to the sufficiency of the allegations of the bill. It is insisted that the allegation that plaintiff in error and his wife “made, executed, acknowledged and delivered a certain deed of mortgage,” does not imply that it was duly executed and became a valid mortgage. We think the allegation is sufficient, and can only be construed to mean that it was properly made and valid in its operation. But if this were not so, the instrúment is referred to as an exhibit, which has the same effect as if copied at large into the bill. The court will refer to the exhibit to see if it sufficiently appears to have been so executed.
' It is again urged that the bill fails to show what interest the wife had in the premises, and conveyed by the mortgage. As it is, by reference, made a part of the bill, upon inspection, we find, in the body of the instrument, that she purports to convey all of her interest, and in the acknowledgment, she relinquishes her dower in the premises. From the instrument, as a part of the bill, it appears that it was a dower interest. This allegation is sufficiently made, and this was admitted by the decree pro confesso.
Several objections are taken to the certificate of acknowledgment of the deed. It appears substantially, that Mrs. Moore acknowledged the deed freely and voluntarily; that the officer made her acquainted with the contents of the mortgage, and that he examined her separate and apart from her husband. This is in compliance with the act of 1853, section 1. Scates’ Comp. 966. The certificate also states that she relinquished her right of dower in the premises. And the certificate must be held sufficient as to Mrs. Moore’s execution óf the deed. ■
It is insisted that the notary public before whom the mortgage was acknowledged, failed to affix his official seal. It appears that in the body of his certificate he describes himself as notary public, and following his signature he designates himself as notary public, and a seal is annexed. It is true, that in the testing clause to the certificate he says: “ Given under my hand and seal.” If, when the instrument was produced, it appeared that it was his official seal which was annexed, that would be sufficient, as the seal imports verity, and that the act is official and not individual. Inasmuch as the clerk, in making the transcript, is unable to transcribe a literal copy of the seal, we must suppose that the representation is of his official and not his private seal. Again, the default admits that the mortgage was made and acknowledged. If only the private seal of the officer had been affixed, the acknowledgment would have been insufficient, and the instrument would not have been sufficiently acknowledged. It would only have been an attempt at an acknowledgment; but by the default the sufficiency of the acknowledgment was admitted.
It is again urged, that the special master’s report is not sufficient to support the decree. We do not deem it important whether it was or not, inasmuch as there was a hearing on the bill, pro confesso order, exhibits and other proofs. The presumption would be that on the hearing the court had all the evidence that was necessary to sustain the decree. Indeed, the bill having been taken as confessed, proof beyond the exhibits and pro confesso order was unnecessary. It was, according to the uniform practice, entirely discretionary with the court whether it would hear any evidence on a bill taken as confessed, the examination of the exhibits in such a case not being to establish the truth of the allegations of the bill, but simply to ascertain the sum due, upon which to base the decree. There is no force in this objection.
An exception is taken, that notice was not given to plaintiffs to appear before the master on the reference. In cases where a default has been taken and a reference is made, such a notice is not required. It is only in contested cases, where a reference is made, to report evidence, or to hear proofs and report facts, that the rule is applicable. It is true, the parties being in court, they have the right in a case where the bill is taken as confessed to appear before the master on a reference if they think proper. But in such a case the practice does not require notice; or upon the master’s making the report of his computation, the defendant may, if he choose, file exceptions and resist its approval.
Did the court below err in overruling the motion to set aside the sale, and in rendering a decree confirming it?- It is urged that the master, in conducting the sale, did not conform to the decree under which he acted. He reports that he had given the notice required by the decree. It was not necessary that he should set out the notice in his report, but on an application for its confirmation it was necessary that the court should be satisfied that the sale had been made in accordance- with the requirements of the decree. Nor is it necessary, on such a motion, that evidence of that fact should be preserved in the record, unless the confirmation is resisted and it is desired by one of the parties. The presumption is, that the court below had sufficient evidence to warrant the order of confirmation.' In the case of Dow v. Seeley, 29 Ill. 495" date_filed="1863-01-15" court="Ill." case_name="Dow v. Seely">29 Ill. 495, this' court said, that we are inclined to think that such a report, made by the master, was sufficient. And upon further and more mature reflection, we are disposed to adhere to that rule. Until rebutted, or at least objected to before approval, it will be held sufficient.
Exceptions are taken because the master’s report of the sale was not filed for more than a year after the sale was made. We are unable to see how this could have affected the rights of plaintiff in error. If he desired to redeem from the sale, a certificate of the sale was no doubt filed in the recorder's office, and it would have afforded all the information necessary for that purpose. It must be presumed that he was cognizant of the sale, as it is not probable an" event of such importance to his interest could have transpired, when he was a party to the suit by service, without his knowing when it was made. If he desired to ascertain whether the sale was properly made, he could, at any intervening term, have, by applying for a rule upon the master, compelled the report to have been filed. That officer is the agent of the law, and not of either of the parties, and one party has the same power as the other to compel him to perform his duty, by application to the court of which he is an officer. Notwithstanding it was his duty to report at the first term after the sale occurred, a neglect of that duty could not be a reason for setting aside the sale, when either party might have compelled him to make his report.
Exceptions are also taken to the limited time within which plaintiff in error was required to pay the money before a sale was required. The time allowed was ten days. No sale could have been made until the expiration of thirty-eight days, as the decree required four weeks’ notice after the expiration of the time allowed for payment, and then the sale was subject to redemption for twelve months by plaintiff in error. Eighty-seven days elapsed after the decree was rendered and before the sale was made. In this no hardship is perceived; but had the sale been without redemption, in view of the sum required to be paid, it would have been otherwise. There is no force in this objection.
In this case the-homestead exemption was not released in the mortgage. If it then existed and continued until the time of the foreclosure, it was not cut off by the decree or subsequent sale. If that right existed, not being released by. the mortgage, and the property still being occupied as the homestead by the persons entitled to claim the benefit, it might be set up as a defense to defeat a decree, if the property was worth no more than one thousand dollars. Cassell v. Ross, ante, p. 244. Or a bill might be filed to impeach a decree of foreclosure in such a case. Hoskins v. Litchfield, 31 Ill. 137" date_filed="1863-04-15" court="Ill." case_name="Hoskins v. Litchfield">31 Ill. 137. In this last case the decree of sale and all proceedings under it, were set aside on motion, but it was stipulated that the defendant should have the same relief on his affidavits and motion which he might be entitled to on the facte disclosed if a proper bill had been filed. It was, therefore, treated as an original bill to vacate the decree.
To give effect to the. homestead act according to the design of its framers, the right can only be lost by release or abandonment in the mode pointed out in the statute. A mere failure to claim the right by answer or cross-bill, will not have the effect to bar the right, or be considered as a relinquishment of the benefits of the statute. To give a decree by default such an effect, would be to enable the husband to frustrate the design of the statute. It would enable him by indirection to release the homestead, independent of the action of the wife, when he could not do so in any direct mode. The act has expressly required the wife to join in the deed to have such an effect.
But in this case the premises appear, from the affidavit of plaintiff in error, to be worth a much larger sum than one thousand dollars. His affidavit shows that the premises, when the mortgage was executed, were the homestead of the mortgagors, and continued so up to the time of sale and the' entry of the motion to set it aside. Uncontradicted, that affidavit prima, facie shows that the plaintiffs in error were entitled to the benefits of the act, and there was no opposing proof. In such a case, whilst the fact that the premises are subject to the homestead exemption in part, will éntitle the mortgagors to ólaim its benefits, yet it will not authorize the court to open the decree. Whére the master proceeds to execute the decree, he must, like a sheriff under an execution, ascertain whether the homestead right exists. If so, he must proceed in the manner pointed out in the statute, to make the sale under the decree. And if he fail to do so, the defendant may, after the coming in of the report, enter his motion to set aside the sale. Upon that motion the court will hear the evidence of the parties and determine the question of whether the right exists, and if so set aside the sale.
If the master shall allow the right, and make the sale in accordance with the statute, and the complainant shall deny the existence of the right, he may, upon the coming in of the report, move to set, aside the sale, and the court will hear the evidence and determine the question and decree accordingly. When the right has not been claimed before decree entered, it will be treated in the hands of the master like an execution at law in the hands of the sheriff. In this case the homestead was not set apart to the plaintiffs in error as required by the statute, and the sale should have been set aside, unless the affidavit filed in support of the motion had been overcome by opposing evidence. The decree approving of the master’s report and affirming the sale, must be reversed, and the cause is remanded, with directions to the court below to hear the evidence whether a right to claim the homestead exemption existed, and if so, to set aside the sale; but if not, then to approve the master’s report and confirm the sale.
Decree reversed.