John G. Boyd v. Cudderback

• Decision Date: 30 April 1863
• Citation: John G. Boyd v. Cudderback, 31 Ill. 113, 1863 WL 3080 (Ill. 1863)
• Parties: JOHN G. BOYDv.NATHAN CUDDERBACK et al.
• Court: Illinois Supreme Court

31 Ill. 113

1863 WL 3080 (Ill.)

JOHN G. BOYD

v.NATHAN CUDDERBACK et al.

Supreme Court of Illinois.

April Term, 1863.

OPINION TEXT STARTS HERE

APPEAL from the County Court of the county of La Salle; the Hon. P. K. LELAND, Judge, presiding.

On the 9th day of June, 1857, Nathan Cudderback, and Catharine, his wife, executed and delivered to Alson Ward, a mortgage upon certain lands, situated in the county of La Salle, to secure the payment of a certain promissory note therein described.The deed authorized the mortgagee, or his assigns, to make sale of the premises, upon default made in the payment of the note, and contained the following clause of release:

“The said parties of the first part hereby waive, release and transfer all their right to any and every homestead exemption under the laws of this State, to the said party of the second part, his heirs and assigns, together with all and singular the hereditaments and appurtenances thereunto belonging.”

The officer taking the acknowledgment, certified the same as follows:

+----------------------+
                ¦“STATE OF ILLINOIS, ¦)¦
                +--------------------+-¦
                ¦LA SALLE COUNTY,    ¦)¦
                +----------------------+
                

On this 13th day of June, A.D. 1857, personally appeared before me, notary public in and for the town of Ottawa, in said county and State, Nathan Cudderback, and Catharine, his wife, to me personally known to be the persons described in, and who executed the within mortgage deed, and acknowledged that they had freely executed the same for the uses and purposes therein expressed; and the said Catharine Cudderback, after I had made her acquainted with, and explained to her the contents of the said mortgage deed, on an examination separate and apart from her said husband, acknowledged the said mortgage deed to be her free act and deed, and that she executed the same freely, voluntarily, and without the compulsion of her said husband, and she does not wish to retract the same.

Given under my hand,” etc.

Ward, the payee and mortgagee, having assigned the note and mortgage to John G. Boyd, the appellant, and the note having become due, and remaining unpaid, Boyd was about to proceed to sell the mortgaged premises under the power of sale contained in the mortgage, when Cudderback and his wife exhibited their bill in chancery in the court below, setting up the mortgage, and the assignment of the note secured thereby, to Boyd, and alleged that Boyd had given notice of his intention to sell the premises to satisfy the debt.

The bill alleged that the note was given for money loaned by Ward to Cudderback, and not for the purchase-money, or for improvements upon the premises.

It was further alleged in the bill, the fee simple title to the premises was, at the time of the execution and delivery of the mortgage, in the said Catharine Cudderback, and that said Nathan was only a tenant by the curtesy in the premises.

That said Nathan, with his wife and children, did, at the time of making the mortgage, reside upon the premises, and continued so to reside up to the time of exhibiting this bill, and that the premises were of value, not exceeding one thousand dollars.That the complainants claimed the same as a homestead, and did not release the same by the mortgage.The bill prayed an injunction, restraining Boyd, his agents or attorneys, from selling the premises, or in any manner interfering therewith, until the further order of the court.The injunction was granted in pursuance of the prayer in the bill; and the cause coming on finally to be heard upon a demurrer to the bill, the County Court overruled the demurrer, and the defendant, Boyd, declining to answer further, a decree was rendered in the court below, perpetuating the injunction.From that decree, Boyd prayed this appeal; and in his assignment of errors, questions its correctness.

Messrs. GROVER, COOK & CAMPBELL, for the appellant.

1.The decree was erroneous in making perpetual the injunction restraining Boyd, the appellant, from selling the premises upon the mortgage, for the homestead right must, at some future day, terminate, and then, Boyd would have the right to sell upon the mortgage.

2.In the course of a few years the land may increase in value, and be worth more than $1,000, and then said appellant would certainly have the right to tender the appellees the sum of $1,000, and sell the land.

3.The premises were owned by the wife, while the husband was the head of the family, residing with the same, so that the ownership of the land was not in the same person who was the head of the family, residing on it.Therefore there was no homestead in the premises.

4.If there was a homestead, it was fully released by the mortgage and acknowledgment.

The release is contained in the body of the deed, and is subscribed by both husband and wife.

The deed is duly acknowledged, and the acknowledgment cannot be true unless the officer taking the acknowledgment did fully explain to the wife her rights under the homestead act.

5.There was no occasion for the interposition of a court of chancery in this case at all.

Because no injury would have been done to the appellees if the sale had taken place.

Suppose Boyd had sold the land upon his mortgage, and made a deed of the same to the purchaser, this deed would not have conveyed the homestead unless the mortgage itself had conveyed it.

An action of ejectment could not prevail as against the homestead.

The action of the court would not prevent a multiplicity of suits, for the mortgagee, with condition broken, can maintain ejectment.

Notwithstanding the homestead right, if there was one, the mortgagee had some interest in the premises, and the right to foreclose the equity of redemption as to that interest by a sale.

Messrs. GRAY, AVERY & BUSHNELL, for the appellees, insisted that the decree of the court below was not “perpetual” in its effect, but can only be considered as a decree to continue in force so long as the appellee's right of homestead continues, and the moment such right determines under the statute, the decree will become inoperative.Boyd is at liberty, at any time, to tender to the mortgagors the $1,000, and have the land sold.The decree only enjoins him until he is willing and ready to comply with the requirements of the statute.

The fact that the...