| Ill. | Apr 15, 1864
delivered the opinion of the Court:
The plaintiff in error obtained a decree in chancery to foreclose a mortgage and for a sale of the premises. A sale was had by the master in chancery, and on the coming in of his report thereof, the defendants entered their motion to set it aside, for the reason that at the time of the rendering of the decree, and at the time of the sale, the land was exempt from levy and forced sale under any order or decree of the court. They also proved that the premises were their homestead at the date of the mortgage, and long before and ever since, and as such occupied by the defendants and their family; that the mortgage debt was contracted after July 4, 1851, and was not incurred for the purchase or improvement of the premises, and that he has never released his right of homestead.
This motion was sustained and the sale set aside. The plaintiff took a bill of exceptions and brings the case here, assigning as error this decision of the court.
The plaintiff makes the point that the homestead act of 1851 imposes no restrictions upon mortgages of the homestead. It only exempts it from forced sale under judicial process. This admission disposes of the plaintiff’s case. It is the sale, only, that has been disturbed. The decree remains as it was when rendered. A sale by the decree of a court of equity, under an order to the master to make the sale, is a forced sale, as much so as if the sale was made under a fi. fa. The cases of Smith v. Marc and Ely v. Eastmood, in 26 Ill., were sales made under a power to sell, and not by the order or decree of any court.
The other points made are, that the defendants in error by the mortgage, ipso facto, waived the homestead act; and that not having set up the exemption in an answer to the bill, the question has become res judicata.
We cannot assent to either of these propositions.
The statute points out the mode by which the exemption can be released and waived, and unless that mode is pursued, ■ the exemption is not lost. Walters v. The People, 18 Ill. 199; Kitchell v. Burgwin and wife, 21 id. 40; Vanzant v. Vanzant, 23 id. 540; Green v. Marks et al., 25 id. 122; Deere v. Chapman, id. 612; Smith v. Marc, 26 id. 155; Pardee v. Lindley, 31 id. 174; Hoskins v. Litchfield, id. 137.
■ This last case decides also that the omission to interpose the claim to the homstead as a defense to the bill to foreclose, is of no importance, as the party claiming it could avail of it by motion, as in this-case.
This right is conferred by statute and can be divested only in the mode provided by the statute. A party may set it up in his answer to the bill, or he may claim it when the master proceeds to execute the decree. It is his duty to ascertain, a claim being made, if it is a homestead, and on his report coming in either party may except to the report, and contest the claim of homestead.
There is nothing alleged in the bill in this case about a homestead. Of course, then, taking the hill for confessed, does not amount to a confession of any fact not alleged in it. By failing to answer, the defendants admit only what is alleged in the bill. Gault v. Hoagland et al., 25 Ill. 268.
. The motion for relief, was made at the earliest moment, and was properly allowed. The judgment must he affirmed.
Judgment affirmed.