Eyster v. Elias C. Hatheway A1

• Decision Date: 30 April 1864
• Citation: 50 Ill. 521,99 Am.Dec. 537,1864 WL 3194
• Parties: SAMUEL EYSTERv.ELIAS C. HATHEWAY et al.a1
• Court: Illinois Supreme Court

50 Ill. 521

1864 WL 3194 (Ill.)

99 Am.Dec. 537

SAMUEL EYSTER

v.ELIAS C. HATHEWAY et al.a1

Supreme Court of Illinois.

April Term, 1864.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of LaSalle county; the Hon. MADISON E. HOLLISTER, Judge, presiding.

This was a bill in chancery, filed by Samuel Eyster, in the Circuit Court of LaSalle county, on the 5th day of August, A. D. 1862, alleging, in substance, that Eyster, being seized in fee simple of that part of out-lot 34, in the subdivision of the south-west fractional quarter of section No. 11, in township 33, north range 3 east of the 3d p. m., which lies between Main street and Webster street in the city of Ottawa, in LaSalle county, did, on December 5th, 1860, together with his wife, Sarah Eyster, sign what purported to be a mortgage deed of that date, purporting to convey said premises to Joseph C. Hatheway, to secure payment of a certain promissory note described therein, for the sum of $889.18, given by Eyster to Joseph C. Hatheway, of even date with the mortgage, and due and payable six months after the date thereof.

That on December 6th, 1860, Joseph C. Hatheway pretended to assign the note and mortgage to Elias C. Hatheway; but that there was no valid consideration for such assignment; that it was done to defeat any plea of usury that Eyster might thereafter interpose to the payment of the note.

That before the execution of this note and mortgage, on January 26th, 1859, Eyster and his wife executed and delivered to Joseph C. Hatheway, a certain trust deed upon the premises above described, to secure the payment of the sum of $600, which sum was borrowed by Eyster from Joseph C. Hatheway, and for which he gave his note described in the trust deed.

That on December 5th, 1860, more than fifty days before the note matured, which was secured by the deed of trust, Joseph C. Hatheway, without any solicitation on the part of Eyster, applied to have a new mortgage executed upon the premises, pretending that he desired to give Eyster more time, but for the real purpose, as charged in the bill, to obtain from Eyster and his wife a specific relinquishment of her right to said premises by virtue of the homestead exemption laws of this State, there being no such release or waiver in the trust deed.

Accordingly, the note and mortgage in controversy were executed, and were taken by Joseph C. Hatheway in lieu of the note and trust deed.

The bill also alleges, that Sarah Eyster in no way released her homestead right in the premises described in the mortgage deed, although such right may appear to be released by the terms of the mortgage and the certificate of acknowledgment.

That the officer who wrote the certificate of acknowledgment, did not ask Sarah Eyster, at the time she signed the mortgage deed, or at any other time, whether she voluntarily relinquished her homestead right to said premises, nor did he employ words of like meaning. That he did not say anything at all to her in relation to her homestead rights, at the time she signed the mortgage, or at any other time. That he did not explain to her her rights under the homestead law, and that, at the time she signed the mortgage, she never intended to relinquish her rights under the homestead law. The bill asked for an injunction to stay the proceedings until further order of the court, which was granted. On the hearing, the court dissolved the injunction and dismissed the...