| Ill. | Jan 15, 1865
delivered the opinion of the Court :
This record presents the question, whether this transaction was a loan of money by plaintiff in error, and a mortgage executed by defendants in error to secure its payment; or a purchase by plaintiff in error, and a resale to defendants in error. From all of the testimony in the case, it seems to us that plaintiff in error had no design to loan money. He seems to have been willing to purchase the certificate of sale, and to hold it as his own; but with the agreement that Lucas might purchase it by paying the money it cost, within two years. It is true, that several witnesses testify they heard plaintiff in error say that he had loaned Lucas money; or that Lucas owed him money. This testimony is loose and indefinite in its character, and at most, can only create a doubt as to the true character of the transaction. It by no means, when considered in connection with the other evidence in the case, proves it to have been a mortgage. The papers, on their face, show a purchase and resale, and this evidence, as we think, does not overcome the proof they afford of such a transaction.
Nor does the circumstance that defendant in error conveyed, as a part of the transaction, to plaintiff in error other property, prove that it was designed as a loan. Lucas was pressed, and desired to save his homestead, and was, no doubt, willing to convey the other property, of perhaps small value, and permit plaintiff in error to purchase the certificate of sale, if he could repurchase it of him, on the time stipulated. The papers afford evidence of a purchase and resale, and it is necessary, to change the effect of the transaction to that of a mortgage, that such evidence should be overcome by testimony showing that it was not designed to be a sale. And having purchased the certificate, plaintiff in error succeeded to all the rights to the eighty acre tract which Noble acquired by his purchase.
The facts of this case are essentially the same as those in the case of Weider v. Clark, 27 Ill. 251" date_filed="1862-01-15" court="Ill." case_name="Weider v. Clark">27 Ill. 251. It there appeared that Weider had purchased a tract of land from one Moore, and had agreed to make future payments ; had entered into possession and resided upon the same with his family. But being unable to meet the payments, and being anxious to purchase other property which belonged to Clark, Weider agreed that' if Olark would purchase of Moore, and pay the money, and would sell the land, with others, to him, that he would pay Olark the money agreed upon, and receive the deed from him. The arrangement was made, and the homestead act was relied upon to defeat Clark’s recovery. It was there held, that it was not a loan by Olark, .but that Weider owed it as purchase-money. There as here, it was claimed by the purchaser, that he had borrowed the money, and paid off the incumbrance; but it was held to be purchase-money. No difference is perceived, in principle, between these cases.
What, then, were Noble’s rights in this eighty acre tract ? He had foreclosed, under a mortgage executed long before the homestead law was enacted. It is true that he also foreclosed, at the same time and in the same suit, a junior mortgage on the same property, which was given after the adoption of that act. But the sale having been made in satisfaction of that mortgage as well as the other, and defendants in error having failed to redeem from the sale on the elder mortgage, it passed a title free from all claim to the homestead exemption. If the junior mortgage had not been foreclosed, and a sale made under a foreclosure of the elder mortgage, no person would doubt that the sale would have been free from all claims of a homestead exemption. Then, as it was sold under the prior mortgage, and free from such a claim, we are unable to perceive how the foreclosure of a mortgage, which was subject to the homestead exemption, could in any manner affect the rights of the holder of the prior mortgage or those purchasing under it. Had the money necessary to redeem from the sale under the decree foreclosing the elder mortgage been tendered, and the homestead right claimed under the junior mortgage, a very different question might have been presented.
Had the redemption expired and no assignment been made, then Noble would have acquired the title free from all homestead claim. And plaintiff in error having purchased the certificate of sale under that foreclosure, he can be in no worse condition than Noble, but was substituted to all of his rights. This disposes of the questions relating to the eighty acre tract. And as the forty acre piece of timber was not adjoining the other tract, or used and occupied as a homestead, it was clearly subject to sale. In fact no question is made with reference to it.
Then, did the omission to insert a formal release in the deed conveying the two acre tract, give defendants in error the right, after the decree was passed, to pay the money, or on default, that it should be sold, and a sale made, and a redemption passed without any claim of such a right, estop Lucas from asserting the right in this proceeding? This transaction took place, after the adoption of the homestead law of 1851, and it authorized the husband to relinquish the right, independent of any action on the part of the wife. And under that law she was invested with no such right during the lifetime of her husband. At his death she could' for the first time become invested with the right It is, however, different under the amendatory act of 1857, as it casts the right jointly upon the husband and wife.
Under the former law the husband could have released the right by a formally executed instrument, but there is no pretense that such is the case in this controversy. In the case of Smith v. Marc, 26 Ill. 150" date_filed="1861-04-15" court="Ill." case_name="Smith v. Marc">26 Ill. 150, it was said, to subject the homestead to a forced sale under process from a court of law or equity, there should be a formal release of the right to claim the exemption. And this is the language of the statute, which expressly declares that it shall not be subject to such sale. Uor does the statute require the right to be claimed, to prevent a sale. The exemption is created by law, and not by the act of the parties. It has not provided that the homestead shall only be exempt from a forced sale in case the defendant claims the right; but the statute prohibits the sale, unless the right is released in the mode it has prescribed. Then, wha.t was the effect of the order, taking the bill as confessed, and rendering a decree that the lands should be sold to pay the purchase-money to plaintiff in error ? The default admitted the truth of the allegations of the bill, and nothing more. That bill contained no allegation that the premises were not subject to the homestead exemption, hence there was no admission that the defendant, Lucas, had no right to insist upon such an exemption. Uor can the fact that Lucas failed to claim the right before the master made his sale, affect his rights. It was the duty of the purchaser at the master’s sale to know whether the exemption existed. This is open and visible, and as easily known by one person as another, because, to be a homestead, the debtor or his family must reside upon the premises, and that fact may be readily and certainly known by the purchaser. It then follows that the two acre tract was improperly sold, and the decree setting aside the sale was proper, but the court erred in finding and decreeing that the eighty acre tract was subject to the homestead exemption. The decree is therefore modified so far as it relates to that tract, so as to dissolve the injunction restraining plaintiff in error from executing his writ of possession for the same. But the decree is affirmed so far as it enjoins plaintiff in error from executing his writ of possession for the two acre tract.
Decree modified.