Johnston v. Dunavan

• Decision Date: 31 May 1885
• Citation: 17 Bradw. 59,17 Ill.App. 59
• Parties: JOSEPH P. JOHNSTONv.MARY A. DUNAVAN ET AL.
• Court: United States Appellate Court of Illinois

17 Ill.App. 59

17 Bradw. 59

JOSEPH P. JOHNSTON

v.MARY A. DUNAVAN ET AL.

Appellate Court of Illinois, Third District.

May Term, 1885.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding. Opinion filed October 5, 1885.

Messrs. MORRISON & WHITLOCK, for plaintiff in error.

Messrs. KETCHUM & HATFIELD, for defendants in error.WALL, P. J.

On the eighteenth day of January, 1877, Mary A. Dunavan and Jesse J. Dunavan, her husband, executed and delivered to Joseph P. Johnston a deed of mortgage upon certain real estate, owned in fee by said Mary, of less value than $1,000, then occupied by herself and family as a homestead, to secure the said Johnston in the sum of $400, which he then loaned to the said Jesse J. Dunavan. The instrument contained the usual release of homestead, but the certificate of acknowledgment fails to state that the homestead was released by the husband, though it is sufficient in that respect as to the wife. Upon a bill filed to foreclose the mortgage it is sought to correct the certificate, so that it shall conform to the statute and thereby release the right of homestead.

It was alleged that when the mortgage was given it was understood and agreed that all such rights should be waived, so that the mortgage should be a valid and effective lien as to the entire estate, but that through the failure of the justice to make the proper certificate the intention of the parties was not accomplished.

There is some evidence, and we may say it is satisfactory, that when the loan was negotiated it was understood on both sides that the security was to be perfect, and that the lien thereby created was to be paramount, though the release of the right of homestead was not definitely or specifically discussed. Nor is it clear that the justice, when he took the acknowledgment, was informed by the mortgagors that they intended to make such release. The justice in his testimony states, that while he can not recall the conversation on that occasion he is confident that he received such an acknowledgment as was necessary to make the instrument effective for all that it set forth; but it is apparent that he has but a general recollection of the matter, and the mortgagors deny that they made any acknowledgment whatever as to the homestead. There is great uncertainty as to what is the truth upon this point. The circuit court denied the specific relief sought, and this presents the only question for our...