Best v. Gholson

• Decision Date: 30 September 1878
• Citation: 89 Ill. 465,1878 WL 10059
• Parties: THOMAS K. BESTv.FRANCIS GHOLSON.
• Court: Illinois Supreme Court

89 Ill. 465

1878 WL 10059 (Ill.)

THOMAS K. BEST

v.FRANCIS GHOLSON.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Stephenson county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. W. SCOTT AGNEY, and Mr. J. A. CRAIN, for the appellant.

Mr. U. D. MEACHAM, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was forcible detainer, was originally commenced before a justice of the peace, and from the judgment rendered in that court against defendant an appeal was taken to the circuit court, where, upon a hearing of the cause before the court, without the intervention of a jury, defendant was found not guilty, and the case is to be heard in this court on plaintiff's appeal.

The title to the premises in controversy which plaintiff insists is the paramount title, he obtained under a trust deed executed by defendant, in the execution of which his wife joined with him. On default being made in the payment of the indebtedness secured, the trustee, on the application of the holder, advertised the property, and sold it, under the power contained in the trust deed, at which sale plaintiff became the purchaser, and received a trustee's deed for the property. After demand made upon defendant, this suit was brought to recover possession of the premises.

By one clause in the body of the trust deed the grantors waived and released all right and benefit of homestead in the premises, under the Homestead act, which was signed by defendant and his wife. The certificate of acknowledgment, as to the husband, is in the usual form, but makes no mention of the “release and waiver of the right of homestead.” As to the wife, the certificate is fuller, and states that after being made acquainted with the contents of the deed, among other things, she relinquished “all her rights and advantages under and by virtue of all laws of said State relating to the exemption of homestead.”

The defense is, the premises are, and had been long before and since the execution of the trust deed, the homestead of defendant, on which he has resided and does still reside with his family, and that there had been no valid release of his homestead rights therein in accordance with the provisions of the statute. The trust deed, under which, as we have seen, plaintiff deraigns whatever title he has to the premises, was made in 1873, and should have been acknowledged in the manner provided in the act entitled “Conveyances,” in force July 1, 1872. That act provides, “no deed or other instrument shall be construed as releasing or waiving the right of homestead, unless the same shall contain a clause expressly releasing or waiving such right, and in such case the certificate of acknowledgment shall contain a clause substantially as follows: ‘including the release or waiver of the right of homestead,’ or other words which shall expressly show that the parties executing the deed or other instrument intended to release such right.” The certificate of acknowledgment in this case, as to the husband, does not include the words of the statute, nor any equivalent words that indicate he expressly intended to...