Asher v. Mitchell

• Decision Date: 30 June 1879
• Citation: 1879 WL 8550,92 Ill. 480
• Parties: JOHN A. ASHERv.JAMES MITCHELL.
• Court: Illinois Supreme Court

92 Ill. 480

1879 WL 8550 (Ill.)

JOHN A. ASHER

v.JAMES MITCHELL.

Supreme Court of Illinois.

June Term, 1879.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Jersey county; the Hon. LYMAN LACEY, Judge, presiding.

Messrs. WARREN & POGUE, for the plaintiff in error.

Messrs. S. T. & R. S. SAWYER, for the defendant in error.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This was an action of ejectment, brought to the March term, A. D. 1872, of the circuit court of Jersey county, by James Mitchell, defendant in error, against John A. Asher, plaintiff in error, for the recovery of lot 10, in block 13, in the town of Jerseyville, in said county. There were four trials of the case altogether, the last one being at the September term, 1878, of the court.

Both parties claimed title to the lot in question through one Charles H. Roberts, as a common source of title. The plaintiff, for the purpose of establishing title in himself, showed that on the 10th of July, 1858, Charles Roberts and wife executed a mortgage upon the lot in question to Stigleman & Co., to secure two notes given at the same time by Roberts to Stigleman & Co. for the sum of $237.50 each payable respectively in eight and ten months; that Stigleman & Co., on the 3d of August, 1859, filed a bill in the Jersey county circuit court against Roberts and wife, to foreclose the mortgage above mentioned; that at the April term, 1865, of the court a decree of foreclosure was rendered under which, on the 12th day of November, 1870, the mortgaged premises were sold by the master in chancery to defendant in error, who subsequently, on the 16th of February, 1872, received from the master a deed for the premises.

Plaintiff in error, for the purpose of showing title in himself, offered in evidence a deed of trust for the lot in question, from Roberts and wife to Benjamin Wedding, as trustee, dated March 10, 1863, to secure Charles C. Roberts' note of that date for $870 payable to Henry C. Roberts ten months after date. The deed of trust contained a power of sale, with a release and waiver of homestead by Roberts and wife.

Plaintiff in error also offered in evidence a deed for the same premises from Wedding to Jefferson G. Roberts dated April 8, 1865; also a deed from the latter to plaintiff in error for the same premises dated the 9th of November, 1865; but on objection by defendant in error they were all excluded from the jury, no reason being assigned therefor either by court or counsel. Plaintiff in error then proposed to prove that Charles Roberts and his family, before and at the time of the execution of the mortgage to Stigleman & Co., and from thence to the time of the execution of the deed of trust to Wedding, had occupied the premises in controversy as a homestead, which was also objected to and excluded by the court. Plaintiff in error then offered to prove that Charles Roberts and family had, for the last twenty years, continuously occupied the premises as a homestead and paid all the taxes thereon, and that the indebtedness secured by the mortgage to Stigleman & Co. was the consideration of a portable saw mill, and that the same did not accrue on account of the purchase or improvement of the lot in question, which the court also excluded from the jury. Plaintiff in error not offering anything further, there were a verdict and judgment for defendant in error as already stated.

Various reasons are urged for a reversal of the judgment of the court below, but in the view we take of the case only one or two of them present any difficulty or require any special notice.

By reference to the mortgage given to Stigleman & Co., it will be seen that there was no waiver of the homestead, and if it be true that at the time of the trial Roberts and wife were still in possession of the lot, occupying the same as a homestead, as plaintiff in error proposed to prove, it would follow that the defendant in error was not entitled to recover. It is claimed, however, by the latter, that by reason of the proceedings and decree in the foreclosure suit, Roberts and wife and all persons claiming under them are estopped from setting up any claim of homestead in the premises; and this is undoubtedly true if the homestead rights of Roberts and wife were in point of fact put in issue in those proceedings.

By reference to Roberts' answer it will be found that all he says on the subject of a homestead in the premises is contained in these words: “He further alleges that said described premises is his homestead where his family resides.” He then proceeds to pray that commissioners be appointed to set off his homestead, etc. The wife in her answer says that it had been made known to her that the laws of the State provided for a homestead exemption to the value of $1000, and that as the mortgage did not waive the homestead, prayed that commissioners might be appointed, etc. What is here stated is all that is said in their answers, in relation to the homestead.

It will be perceived that the only fact stated by either party upon which any issue could be formed is that stated by Roberts by way of recital, viz: that his family at the time of the answer resided on the mortgaged premises, and even if that had been affirmatively proved, it would not have even tended to show that the premises constituted their residence or homestead at the time the mortgage was executed. It is manifest that the answer sets up no fact or facts showing the existence of a homestead at the time of the execution of the mortgage. Indeed, it is not so much as claimed that the premises constituted their homestead at the time. See Kitchell v. Burgwin et ux. 21 Ill. 40.

Everything stated in either of the answers might safely have been admitted, and still the complainant would have been entitled to a decree of foreclosure of the mortgage.

By reference to the bill itself it will also be perceived that it does not contain any charge with respect to a homestead or claim of homestead in the premises; nor is there anywhere to be found in it the slightest allusion to that subject. It is therefore very manifest that the rights of Roberts and his family to a homestead in the premises were not put in issue by the pleadings in that case, and if, by reason of the proceedings and decree therein, they lost the right of homestead, it must be upon the ground that it was their duty to have set it up in that suit, and that having failed to do so, they are now estopped from doing it.

Without doubt, as a general rule, it is the duty of one seeking by bill in chancery to enforce rights in or pertaining to real property, to make all persons claiming an interest in the same property, who would in any manner be affected by the decree to be rendered in the case, parties to the suit, and when so made parties it is their duty, if the bill does not properly state or disclose their true interest, to do so themselves either by answer or cross-bill, as circumstances may require, and if they do not they will be estopped from doing so afterward. This court, however, in construing the Homestead act of 1851 as amended by the act of 1857, said, in the case of Hoskins v. Litchfield et al., as far back as 1863: “No one can doubt, who will carefully examine this legislation, that it was the object of the legislature especially to throw a shield and protection around the wife and children even more than the husband,--to those they designed to secure a home in spite of the husband and father, and in defiance of the world, unless it should be expressly and understandingly released by the wife in the mode provided by the statute, or unless she removed from and abandoned it as a home. This mortgage, as to the homestead right, is like a mortgage in which the wife has not released her right of dower when sought to be enforced in defiance of that right.

"Suppose a wife, in such case, were made a party to a bill to foreclose a mortgage, without any averments that any right of dower existed, or that the wife had released her dower, and a decree passed against the husband and wife foreclosing the mortgage and ordering a sale of the premises,--no one would contend that the right of dower would be affected by such a decree. * * * The husband can not, by neglecting to make a defence for himself and wife, give the mortgage in which the wife has not released the homestead the same practical effect it would have, had she thus released. This would be to defeat the statute and its manifest object by mere legal form.” 31 Ill. 137.

Wing v. Cropper et ux. 35 Ill. 256, was a case of foreclosure of a mortgage containing no release of the homestead, where the defendants had failed to make answer to the bill and a decree pro confesso was entered against them. At a subsequent term of the court, upon the coming in of the report of the sale, the defendants, for the first time, set up the right of homestead in the mortgaged premises, and it was there urged by complainant that the defendants not having set up the exemption of the homestead by answer to the bill, the question had become res judicata, and we there said we could not assent to that proposition; that the statute pointed out the mode by which the exemption can be released and waived, and unless that mode was pursued the exemption was not lost.

Again, in Mooers et al. v. Dixon et ux. 35 Ill. 208, we sustained an original bill by husband and wife to set aside a sale made under a decree of foreclosure of a mortgage in which there had been no release of the right of homestead, although complainants had been duly served with process but had made no defence.

The principle upon which these cases all rest is, that the homestead is intended for the benefit of the debtor's family as much as himself, and the law will not permit him to defeat this right of his family by mere negligence and laches on his part. To permit this to be done would be to allow the husband to accomplish by his own negligence that which the...