| Ill. | Jan 15, 1869
delivered the opinion of the Court:
Two questions are presented by this record. First, did Evans receive the transfer of the bond of the Illinois Central Railroad Company in trust for any purpose; and second, can a homestead be allotted a second time to the same party out of the same premises ?
The first depends upon the facts proved, and they will be examined in vain to find any ground for the assumption that this equitable title of Graves to section 20, was assigned for any trust purpose, or that it should be considered as a mortgage. Graves, in his testimony, denies it. He says he was unable to pay his debts, and thought if he could dispose of this land at a fair value he could pay ; he could not make any sale ; could not pay the interest on the debt; went to Evans and told him he could neither pay for the land nor sell it, and that he must take it and do the best he could with' it; that he had no money to pay him for the money he, Evans, had advanced on it. Evans hesitated about taking it, but finally agreed to take it. There were more than five thousand dollars due the company on the land when Evans agreed to take it, besides interest. The land was nearly all enclosed, and about three hundred acres broke up. Before he let Evans have it, he tried to get complainant to take it, but he refused: then tried to get him and his brother, John Stubblefield, to take it, but they gave him no encouragement. There was no arrangement or understanding between Evans and Graves that Graves was to have any benefit out of the land if it sold for more than Evans paid out on it. The transfer was an absolute one, without any secret or other trust, and therefore the maxim quoted, “ once a mortgage always a mortgage,” lias no application.
The sale was absolute to Evans. The land, in the condition the payments were, more than five thousand dollars being due upon it, was unsaleable, and worth but little in the market, if there could be said to be any market for it. Stubblefield, himself, testifies he did not think the land worth much. Besides the amount due the railroad company, there were the advances Evans had made to pay the interest on the railroad debt, amounting to several hundred dollars, and in addition, Wright’s interest, for which he had obtained a deed under his mortgage sale, had to be paid for, so that it may be safely said, Evans paid the full value for that portion of the land he obtained.
Upon the other question, can a homestead be assigned to the same party out of the same premises a second time? We think there can be no question about it. When Wright foreclosed his mortgage on the twenty-three acre tract, and was proceeding to sell the same, the homestead claim was interposed, and the master in chancery, in conformity to the statute, had the tract divided, and five acres, part thereof, and then worth $1,000, was allotted to Graves, on which he then resided, and has, ever since, resided. This was near nine years ago, and at the time of this decree of foreclosure by Evans, the five acres thus set off, which were appraised at $200 per acre under Wright’s decree, the weight of testimony is, is now worth $500 per acre. The law gives to a debtor a homestead of the value of $1,000 and no more, which is exempt from execution or forced sale. Uo part of our State, within the last nine years, has improved, and its lands advanced in price, more rapidly, than in the locality of these premises, and while a homestead of the value of $1,000 can be had in them, and leave a large overplus for creditors, we can perceive no reason why it should not be divided a second time. All the debtor can demand is, a homestead of that value. Evans was no party to the assignment of the homestead in the first instance, and no rights as against him can have been acquired thereby by Graves which ought to preclude Evans from collecting his debt, or some portion of it, sufficient being left Graves to satisfy his homestead right. As suggested by counsel, if a man desires to keep his homestead from his creditors, he has only to execute a mortgage to a friend, have it foreclosed, procure the homestead to be set off, and then, however much it may appreciate in value, hold it in defiance of his creditors. Suppose, nine years ago, a tract of land containing ten acres, part of a large tract near the city limits of Chicago, had been valued and set off as a homestead, it being then of the value of $1,000, and on this land, the resident head of the family had erected costly buildings and improvements, by means of which, and the rise of property in that-locality, its value now should greatly exceed one thousand dollars, by what principle of right, law or justice, could the claimant insist upon holding the tract as a homestead, when one-tenth of the tract would fully satisfy the homestead right? We can see none. The principle is the same if there be but one city or town lot. If it is of greater value than $1,000, and can be so divided as to leave a homestead of the value of $1,000, a division ought to be had. And there is no hardship in this, for under the statute, the claimant can be deprived of his homestead by the payment of $1,000 by the creditor who is proceeding against it. A debtor, being unable to pay his. debts, has no right to a homestead of greater value than $1,000. By securing one to him, of that value, his rights arc satisfied and the requirements of the law fulfilled.
The court decreed properly, that Evans’ mortgage was a prior lien on this land; that the sale of Graves’ equitable claim to the railroad land was absolute, free from all trusts and conditions, and that a homestead right can be assigned in the same premises to the same debtor a second time, the only limitation being that it shall be of .the appraised value of $1,000.
For the reasons given, the decree of the circuit court is in all things affirmed.
Decree affirmed.