| Ill. | Jan 19, 1893
delivered the opinion of the Court:
Section 1 of chapter 52 of the Revised' Statutes provides that the homestead and all right and title therein shall be exempt from the laws of conveyance, descent and devise, except as thereinafter provided. Section 4 of the act provides that no release, waiver or conveyance of the estate so exempted shall be valid unless the same is in writing, subscribed by said householder and his or her wife or husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or possession is abandoned or given pursuant to the conveyance, etc.
It would seem clear, if it was a case of first impression, that a verbal contract not in writing, agreeing to convey the homestead, was, under this statute, without validity; and if it be true, as alleged in the bill and shown at the hearing, that it was verbally agreed between complainant and the defendants that the homestead should be waived and released, that such agreement could not be specifically enforced, irrespective of whether part of the consideration had been paid or not. But we have been called upon frequently to construe this and similar provisions, and held that in all cases, whatever may be the language of the deed or instrument in writing, that it was invalid as affecting the homestead, unless there had been a release and waiver of the homestead in the manner prescribed by the statute. Vanzant v. Vanzant, 23 Ill. 540; Miller v. Myrtle, 27 id. 405; Patterson v. Kreig, 29 id. 518; Pondee v. Lindley, 31 id. 187; Redfern v. Redfern, 38 id. 509; Black et al. v. Lush, 69 id. 70; Best v. Gohlson, 89 id. 466.
Not only must the contract contain a special release of the right of homestead, but it must also be in writing, and subscribed by the person in whose favor the exemption exists, with his or her wife or husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged. It is conceded that the contract in writing, executed by the defendants, contained no release or waiver of the homestead; but it is insisted, first, that the agreement was to convey in fee simple clear of all incumbrances whatever, and, therefore, it is said, necessarily included the release of the homestead estate. This position is met fully in the case of Redfern v. Redfern, supra. Upon the like insistence in respect of the deed there under consideration, it was said : “ But we are bound, in all such cases, whatever may be the general language of the deed, whenever the claim of the homestead is set up, to examine and see if that right has been released or waived in the mode prescribed in the statute.” We need not pursue this branch of the discussion farther.
And, second, it is insisted that the verbal agreement between the parties was for the conveyance and release of the homestead estate, and that, by mistake of the scrivener, it was omitted from the written contract, and the acknowledgment likewise omitted. And the general doctrine, that courts of equity will correct and reform instruments in writing to accord with the facts, is invoked. This doctrine is well understood and often applied, but courts of chancery will not, under the pretext of correcting a mistake, “ make that a conveyance which is not in itself a conveyance.” Thus it was said in Lindley v. Smith, 58 Ill. 250" date_filed="1871-01-15" court="Ill." case_name="Lindley v. Smith">58 Ill. 250, in speaking of conveyances by married women, under the statute then in force: “A court of chancery cannot give life to an instrument which has no vitality in itself. A married woman can convey her land only in the manner prescribed by the statute in existence at the time she makes the deed; to make the deed effectual, all the forms and solemnities required by the statute should be observed.” So, here, the written instrument was without validity in respect of the estate of homestead of defendants in this property, and the court was without power to vitalize it. As such estate can only be released in writing, subscribed and acknowledged as prescribed by the statute, the attempt of the court to reform the contract in writing, upon proof of the verbal agreement, was in effect to make a new and independent contract affecting a release and waiver of the estate. This can not be done.
Moreover, the court decreed that the notary public who drew the written contract, be required to append his acknowledgment to the instrument as reformed, waiving the homestead in due form of law. This was unauthorized either by the allegations in the bill or proofs. The bill alleges, as amended, that the notary public, through ignorance, neglected to acknowledge the instrument, and the proof shows that there was in fact no acknowledgment. It clearly appears that no one thought it necessary that an acknowledgment should be taken or made, nor was it spoken of or considered in any manner at the time of the execution of the instrument, or thereafter.
We are of opinion that the court erred in-reforming the contract and decreeing its specific performance as reformed. It appears affirmatively, that the defendants have always been ready and willing, and offered to convey according to the terms of the written agreement, and that the complainant declined and refused to accept a conveyance without a waiver .and release of the homestead estate therein. The estate of .homestead is a freehold, and was clearly involved in this litigation. The motion to dismiss the appeal entered in this court will, therefore, be overruled. The decree of the Circuit Court will be reversed and the cause remanded with instructions to dismiss the bill.
Reversed and remanded.