Gage v. Wheeler

• Decision Date: 15 June 1889
• Citation: 21 N.E. 1075,129 Ill. 197
• Parties: GAGE v. WHEELER et al.
• Court: Illinois Supreme Court

129 Ill. 197

21 N.E. 1075

GAGE

v.WHEELER et al.¹

Supreme Court of Illinois.

June 15, 1889.

Error to appellate court, Second district.

Bill by Seth Gage against Hannah Wheeler and John Small, administrator of James Wheeler, deceased, in the circuit court of Kankakee county, to foreclose two chattel mortgages. Rev. St. Ill., c. 95, § 2, provides that the certificate of acknowledgment of a chattel mortgage may be in the following form: ‘This [name of instrument] was acknowledged before me by [name of grantor] and entered by me this ___ day of _____, 18__. Witness my hand and seal.’ The mortgages in suit conformed to this requirement. The circuit court decreed foreclosure. The appellate court reversed the decree, and complainant brings error.

H. K. Wheeler, for plaintiff in error.

WILKIN, J.

Defendant in error, Hannah Wheeler and her husband, James Wheeler, executed, acknowledged, and delivered two mortgages to plaintiff in error on a building used as a millinery store and dwelling-house in Momence. The house was on leased ground. The mortgages were in form chattel mortgages, but each contained a clause, waiving the homestead right. They were each acknowledged before a justice of the peace, his certificate containing the clause ‘including the release and waiver of the right of homestead,’ but failing to show that the grantors personally appeared before him, or were personally known to him to be the persons making the acknowledgments. This cause originated in the circuit court of Kankakee county on bill to foreclose these mortgages. James Wheeler died before the bill was filed. The only question raised on the record is whether or not the acknowledgments to the mortgages are sufficient to release the estate of homestead. The circuit court held they were, and decreed in favor of the complainant. The appellate court reversed that decree, and by writ of error to that court the record is brought here for review.

It has been repeatedly held by this court, under statutes prescribing the mode in which the homestead exemption or estate might be released, waived, or conveyed, that, to make such release, waiver, or conveyance effectual as against the person entitled to the exemption or estate, the requirements of the statutes, both as to the terms of the deed and the acknowledgment, must have been complied with. Black v. Lusk, 69 Ill. 70;Kingman v. Higgins, 100 Ill. 319;McMahill v. McMahill, 105 Ill. 596. See, also, cases cited in opinion of the appellate court by SMITH, Judge.²

It being admitted that the homestead right existed in the grantors at the time of the execution of the mortgages, it follows that such right could only be released, by an acknowledgment,‘in the same manner as conveyances of real estate are required to be acknowledged.’ Section 4, c. 52, Rev. St. But acknowledgment to conveyances of real estate can only be made when the grantor is personally known to the officer taking such...