Hoskins v. Litchfield

• Decision Date: 30 April 1863
• Citation: 83 Am.Dec. 215,31 Ill. 137,1863 WL 3082
• Parties: WILLIAM HOSKINSv.HERVEY LITCHFIELD AND WIFE.
• Court: Illinois Supreme Court

31 Ill. 137

1863 WL 3082 (Ill.)

83 Am.Dec. 215

WILLIAM HOSKINS

v.HERVEY LITCHFIELD AND WIFE.

Supreme Court of Illinois.

April Term, 1863.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Bureau county; the Hon. M. E. HOLLISTER, Judge, presiding.

On the 30th day of August, 1859, the plaintiff in error, William Hoskins, exhibited his bill in chancery in the Circuit Court, against Hervey Litchfield and Elizabeth Litchfield, his wife, to foreclose a mortgage executed by the defendants, to Hoskins, on the 10th of December, 1857.

The mortgage was in the ordinary form, containing the words, “ grant, bargain, sell and convey.” There was no express release of the homestead right of the defendants in the premises, either in the body of the deed, or in the certificate of acknowledgment. The bill required the answers of the defendants to be under oath, and prayed for a foreclosure of all equity of redemption and claim in and to the mortgaged premises. Process was issued and duly served upon the defendants, and they not appearing, the bill was subsequently taken for confessed, and a decree entered for a foreclosure, and sale of the premises. At a subsequent term, the master reported that he had made sale of the premises in pursuance of the decree, and that the complainant became the purchaser.

At the same term that report was approved, and the sale confirmed by the Circuit Court, and the case ceased to be further docketed, the defendants having made no objection to the rendition of the decree, the sale of the premises, or the confirmation of the sale. And never having made any claim of homestead, either when the decree was entered, or when the sale was made, or when the sale was confirmed. On the 12th of February, A. D. 1861, a year after the sale was made, the defendants filed with the clerk of the Circuit Court their motion, supported by affidavit, with notice to the complainant, to set aside the decree of sale, and all the proceedings subsequent to the decree, because the mortgaged premises were their homestead, and that such homestead did not exceed in value $1,000, and had never been relinquished according to law, and that the debt secured by the mortgage, had accrued after August 4, 1851, and was no part of the purchase-money for the premises, but not showing any reason why their claim of homestead had not been set up when the decree of sale was entered, or when the sale was made or confirmed. The complainants agreed with the defendants that they should have all the relief by their motions and affidavits that they could have had by bills in chancery and depositions, or other proceedings to set aside such sale, if they were entitled to any such relief upon the facts, and the case was re-docketed at the March term, 1861, of said Circuit Court, which motion of the defendants, the Circuit Court, at its September term, A. D. 1862, sustained, and set aside the sale, and the original decree of sale, and all the proceedings subsequent thereto, to which decision of the court, the complainant then and there excepted, and had his bill of exceptions signed and sealed by the court, embodying said motion, notice, affidavits, and the decision of the court thereon. The court also further entered, at the same time, a formal decree for the defendants complying with said motion, and ordering “ that said premises stand in all respects as though no proceedings were had upon the said mortgage,” and that the defendants recover their costs of complainant.

The complainant below sued out this writ of error, and now questions the correctness of the ruling of the Circuit Court in setting aside the decree of foreclosure, and the proceedings had in pursuance of such decree.

Mr. MILTON T. PETERS, for the plaintiff in error, insisted that the Circuit Court erred in sustaining the defendants' motion, and in rendering a decree in pursuance of the motion, for the following reasons:

1. The sale was strictly in pursuance of the decree, and here was no injurious mistake, misrepresentation or fraud in said sale, and therefore such sale could not be invalidated. Cooper v. Crosby, 3 Gilm. 508.

2. This motion is substantially a bill of review by the stipulation of the parties, otherwise relief could not be sought in the form of a motion. Bills of review are to correct errors of law apparent upon the record of the original case, or to introduce important testimony newly discovered, neither of which were claimed. The defendants admitted there was no error in the record of the original cause, and they also conceded that they had not discovered any new testimony. Besides, they had not paid the costs of the original case, which is necessary in a bill of review. Griggs v. Gear, 3 Gilm. 10; Evans v. Clement, 14 Ill. 209; McDaniel v. James, 23 Ill. 408.

3. The defendants were guilty of unreasonable delay in making their application to set aside the sale, one whole year having elapsed, and no excuse shown for such delay. Noyes v. True, 23 Ill. 503.

4. Defendants having neglected to make any claim of homestead, when the decree for the sale was entered, or when the sale was made or confirmed, and no excuse shown why such claim was not made at the proper time, they cannot now for the first time make such a claim. Scates' Comp. 576; Getzler v. Saroni, 18 Ill. 518.

5. While the husband is living, he alone can set up the claim of homestead. The wife cannot. The law of 1857 only changes the law of 1851, so as to require the signature of the wife to the deed relinquishing the homestead. No other change was made. 18 Ill. 518.

6. Besides, Mrs. Litchfield was made a party to the original suit, and she was, therefore, as much bound as her husband to have set up the claim of homestead in that suit, if she desired her homestead, and not having done so, she cannot do it now, any more than her husband. 18 Ill. 518. This case was a bill of review by the wife to recover her homestead, and her application was denied.

7. The Circuit Court, in the decree for defendants, held that this mortgage was absolutely void, because there was no relinquishment of the homestead, for the decree provided “ that said premises should stand in all respects as though no proceedings were had upon the mortgage.” Thus denying all right whatever to foreclose a mortgage upon a homestead, when the homestead had not been formally relinquished. If this be the law, then the complainant's mortgage has no more force than blank paper, and at no time could the mortgage be foreclosed, though after the premises had ceased to be the homestead of the defendants, which would be contrary to the terms of the mortgage deed which estops the mortgagors from claiming that none of their estate passed by the mortgage. Scates' Comp. 961.

Messrs. TAYLOR & PADDOCK, for the defendants in error.

The defendants not having waived their claim of homestead to the premises, by the execution of the mortgage, and the premises not exceeding $1,000 in value, the omission of the waiver is fatal to the mortgage and all proceedings under it. Scates' Comp. 577; Kitchell v. Burgwin et ux., 21 Ill. 40; Vanzant v. Vanzant, 23 Ill. 536.

The defendants were not required by the law to do anything to secure their homestead; the proofs in the record show the premises to have been their homestead, and that they did not by...