31 Ill. 157 | Ill. | 1863
delivered the opinion of the Court.
This was an action of ejectment for the recovery of the premises in controversy, under a mortgage. It was executed on the 21st of July, 1859, by defendants in error, and matured two years after date. Mrs. Miller joined in the mortgage and acknowledgment, but only relinquished her right of dower by the acknowledgment. It appears by the agreed case, that the mortgaged premises, at the time the mortgage was executed, was the homestead of the defendants in error, and that they resided on the same from that time until, and after, this suit was instituted. That Youngs W. Miller was the head of the family residing with the same. That the mortgage was not given to secure the purchase money, or any part thereof, for the premises, or for improvements made thereon. The homestead exemption was claimed, and relied upon as a defense to the action, which was allowed by the court, and a judgment rendered in favor of the defendants.
In the case of Boyd v. Cudderback, decided at the present term, the decision in the case of Vanzant v. Vanzant, 23 Ill. 536, was adopted, where it was held, that it must appear from the certificate of acknowledgment, that the wife has specifically released her right to claim the benefits of the homestead act. That without it so appeared, the deed or mortgage was inoperative as a release of that right. That, as the act has made the signature and acknowledgment of the wife to the release a condition to the alienation of the homestead in all cases, her release alone of the fee in the premises does not suffice. The acknowledgment in that case was the same as in this, and it was held not to be in compliance with the statute.
But it was urged, that it could not be interposed in an action of ejectment. This question was presented and determined in the case of Patterson v. Kreig, 29 Ill. 514. It was there held, that under the amendatory act of 1857, the wife being required to subscribe and acknowledge the instrument in connection with her husband, as conditions to the alienation of the homestead, if the deed did not comply with the statute, it might be insisted upon to bar a recovery of the premises. That the amendment enlarged the operation of the statute to such an extent as to apply to deeds and other conveyances. That case is decisive of this.
In this case it appears, that the premises were of greater value than one thousand dollars. To the extent of that excess the mortgage is binding, and on a foreclosure, that excess could be reached by a division; or, if the premises were indivisible, by a sale in the mode prescribed by the statute. Or if a judgment were recovered on the indebtedness, a sale could perhaps be had under the statute, in the manner it has provided. But inasmuch as the mortgage as executed was insufficient to release the premises from the right to the benefit of the homestead act, it was properly allowed as a bar to a recovery in ejectment, and the judgment must be affirmed.
Judgment affirmed.
