102 Ill. 423 | Ill. | 1882
delivered the opinion of the Court:
We think the judgment of the circuit court is right. Under the foreclosure proceedings the purchaser under the decree acquired by his deed the absolute title to all that was by the mortgages subjected to the payment of the debt, and he acquired no more. He took the surplus in value in excess of $1000. His right so acquired gives him no right to the possession in the present condition of affairs.
Appellant’s counsel insist that it was incompetent to prove the homestead right, because its object and effect was “to change or affect the judgment or decree of a court of record, ” and invoke the doctrine that a record can not be opened, modified or contradicted by parol evidence. The doctrine is sound, but has no application. The evidence did not tend to show that the purchaser did not take all that was conveyed by the mortgage. It was admitted to show the status of the property at the time of the mortgage, and thus show what in fact was the subject matter of the mortgage, and hence the subject matter of the decree. There was no adjudication that Kumpf did not have a homestead estate, or that he had alienated a homestead estate, hence it is no impeachment of the decree to show that he had such estate, which the decree does not profess to deal with.
It is also contended that the homestead estate was not exempt from the lien of the second mortgage, because that mortgage was given, as appellant insists, for improvements on the houses on the premises, and the money was used for that purpose. The language of the statute is: “No property shall, by virtue of this act, be exempt from sale * * * for a debt or liability incurred for the purchase or improvement thereof. ” Where money is borrowed with a view of being used in the purchase or improvement of real estate, and is so used, it can not, in such case-, be said properly that the liability or debt incurred by such borrowing is a debt incurred for the purchase of the property, or a debt or liability for the improvement thereof. As between the lender and borrower, it is a liability for money loaned. As between the borrower and the vendor to him of the property, it may be purchase money, and as between the borrower and the maker of the improvements, it may be regarded as paid for a debt “for improvement thereof. ” In this case we are not dealing with the relations of such parties, and we think this provision of the statute has no application here. (Eyster v. Hatheway, 50 Ill. 531.)
Lastly, it is insisted “that the law with regard to the acknowledgment of deeds and mortgages is unconstitutional and void, as impairing the obligation of contracts.” The claim is, “that deeds and mortgages are contracts, and that after they are signed by the parties then the contract is complete, and if not acknowledged at all, the contract is good between the parties.” Whether a contract be complete by the mere signing by the parties, depends upon the law of the place at the time when the contract is signed. It is within legislative power to enact, as to future contracts, that the same shall not be binding or effective in any way without a seal, or without an acknowledgment of a specific kind, or without being recorded. Where any such enactments are in force, papers purporting to be contracts, though signed by the parties, are not in reality contracts at all until the statutory condition be complied with. Such statutes do not impair the obligations of a contract. They simply prescribe what shall be essential to constitute a valid contract. No constitutional provisions forbid such enactments.
The judgment of the Appellate Court,in this case is therefore affirmed.
Judgment affirmed.
