Hutchings v. Sarah E. Huggins.

• Decision Date: 30 June 1871
• Citation: 59 Ill. 29,1871 WL 7968
• Parties: SARAH ANN HUTCHINGS et al.v.SARAH E. HUGGINS.
• Court: Illinois Supreme Court

59 Ill. 29

1871 WL 7968 (Ill.)

SARAH ANN HUTCHINGS et al.

v.SARAH E. HUGGINS.

Supreme Court of Illinois.

June Term, 1871.

WRIT OF ERROR to the Circuit Court of Perry county; the Hon. M. C. CRAWFORD, Judge, presiding.

Mr. EDWARD V. PIERCE and Mr. D. W. FOUNTAIN, for the plaintiffs in error.

Messrs. HAMMACK & DAVIS, and Mr. GEORGE W. WALL, for the defendant in error.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This case comes to this court upon error to the Perry county circuit court.

On the 17th of April, 1868, defendant in error filed her bill against plaintiffs in error, as the widow and heirs at law of William Hutchings, deceased, to reform and foreclose a mortgage made on the 25th of February, 1857, by said William Hutchings, and Sarah Ann Hutchings, his wife, to one Gilbert L. Rice, upon lands therein described, which appear to have been the homestead of mortgagors, to secure Rice for becoming surety to said William upon his bond as guardian for defendant in error. In February, 1868, the mortgage was assigned by Rice to defendant in error.

William Hutchings, as the bill alleges, died in August, 1865, leaving Sarah Ann Hutchings, his widow, and John Hutchings, William A. Hutchings, Mary Hutchings, Susan Hutchings, Franklin Hutchings and Malinda Hutchings, his children and heirs at law, him surviving.

Said Mary, Susan, Franklin and Malinda Hutchings were minors at the time of filing the bill, for whom a guardian ad litem was appointed. The adult defendants were defaulted, and the bill as to them taken as confessed. As to the minors, proof was taken, to which we shall particularly advert hereafter.

The only allegation in the bill upon which to base the reformation of the mortgage, was this: “That said mortgage was duly acknowledged before J. R. Hutchings, then and now a justice of the peace of said Perry county, but that said justice, through mistake and oversight, did not make a full certificate of same.”

Prayer that defendants answer; that an account be taken of what is due to oratrix; that said mortgage be foreclosed to pay her, and that the lands described be subjected to sale to pay her debt; “that said mortgage and certificate be decreed to be corrected and sold, as above prayed for,” and for further relief.

A copy of the mortgage was attached to the bill, from which it appears that it is wholly silent, both in the body and every part of the instrument, and the certificate of acknowledgment, as respects any release or waiver of the homestead exemption.

The only witness examined in the case was the said justice, whose testimony, so far as it related to the alleged mistake, was, that he prepared the mortgage for said William Hutchings, and Sarah Ann, his wife, to Gilbert L. Rice; that the said William Hutchings, and Sarah Ann Hutchings, his wife, intended, and witness was so instructed by them, to prepare a mortgage conveying all their right, title and interest in and to said mortgaged lands, including the homestead exemption under the laws of the State of Illinois. That is, in their acknowledgment of said mortgage the said William Hutchings acknowledged the same in due form, and acknowledged that he relinquished his right to the same as a homestead under the laws of the State of Illinois; that Sarah Ann Hutchings, then the wife of said William Hutchings, made her mark to said mortgage; that said mortgage was read to her, and witness explained to her the contents of said mortgage, and, on examination separate and apart, and out of the hearing of her said husband, she acknowledged that she had executed the same freely and voluntarily, and without any fear or compulsion on the part of her said husband, and relinquished her dower in and to the mortgaged premises, and all her right to said lands described in said mortgage as a homestead under the laws of the State of Illinois. This was all the evidence relating to any mistake in the preparation, execution, or acknowledgment of the mortgage.

Upon this evidence alone, and the decree pro confesso against the adult defendants, the court rendered a final decree that said mortgage and said acknowledgment thereof, be, in all respects, taken and considered as by the parties intended, and that it be so considered as having relinquished all right of homestead of said parties in said estate as by the laws of the State of Illinois provided. The decree found the amount due the complainant, foreclosed the mortgage and ordered a sale of the premises.

The bill contained no allegation that the premises were not subject to the homestead exemption, or that there was any agreement or understanding between the mortgagors and the mortgagee that the former should release or waive their homestead exemption, or that there was any mistake about the matter except simply as to the certificate of acknowledgment, or that the mortgagee accepted the mortgage under any misapprehension whatever, or any allegation of fraud, imposition or surprise. The justice who took the acknowledgment does not testify that he made any mistake in certifying the acknowledgment, or how it happened to be wholly silent as to the homestead exemption. For...