| Ill. | Jun 15, 1867
delivered the opinion of the Court:
Mansfield and wife executed to the school trustees a mortgage upon their homestead without the statutory waiver, and subsequently sold and conveyed it to Pidgeon. The trustees filed a bill to foreclose, making Pidgeon a party. He defends on the ground that Mansfield and wife had not released their homestead in executing the mortgage. But their deed to him provided, that, as a part of the consideration money, he was to pay the- debt to the school trustees. By the terms of his deed, he assumed the payment of that debt as a condition of taking the title. The parties recognized the debt as a lien on the land, since the deed to Pidgeon described the debt as secured by a mortgage upon the premises. Having obtained the land by recognizing the mortgage as an existing lien, and assuming its payment, he is estopped from defeating it by setting up Mansfield’s homestead rights. To permit him to do this, would be to permit him to practice a fraud both on Mansfield and the school trustees.
It is admitted, however, that the decree was for too large a sum. Counsel ask that a decree be entered here for the proper amount, but, having found this practice to lead to inconvenience, we remand the case, that the proper decree may be entered in the Circuit Court.
Judgment reversed,.