Kimble v. Esworthy

• Citation: 6 Bradw. 517,6 Ill.App. 517
• Parties: LAWSON KIMBLEv.NATHAN W. ESWORTHY ET AL.
• Decision Date: 31 May 1880
• Court: United States Appellate Court of Illinois

6 Ill.App. 517

6 Bradw. 517

LAWSON KIMBLE

v.NATHAN W. ESWORTHY ET AL.

Appellate Court of Illinois, Third District.

May Term, 1880.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Edgar county; the Hon. J. W. WILKIN, Judge, presiding. Opinion filed June 29, 1880.

Mr. A. Y. TROGDEN, for plaintiff in error; that if the homestead is less in value than $1,000, the deficiency cannot be made up, cited Walters v. The People, 18 Ill. 199; Lytle v. Scott, 2 Bradwell 646.

The right of homestead must be set up in the answer, and should be clearly stated: Symonds v. Lappin, 82 Ill. 213; Gardner v. Eberhart, 82 Ill. 316; Hill v. Bacon, 43 Ill. 477.

Only the lot occupied as a homestead is exempt: Kerr v. South Park Com'rs., 11 Chicago Legal News, 18.

The Court will take judicial notice of governmental surveys upon the question of the right of homestead: Hill v. Bacon, 43 Ill. 477.

Taking a new note will not change the character of the debt: Flower v. Ellwood, 66 Ill. 438.

The debt was for purchase money, and the homestead is not exempt: Rev. Stat. 1877, 484.

Mr. HENRY S. TANNER, for defendant in error; that taking a note with personal security was a waiver of the lien, cited 80 Ill. 79; 89 Ill. 71; 85 Ill. 384.

As to the right of homestead in contiguous lots: 31 Ill. 200; 29 Ill. 532.

HIGBEE J.

This was a bill by plaintiff in error, to foreclose a mortgage executed to him by defendant in error, Esworthy.

The defense made by Esworthy and his wife and sustained by the decree of the court below us, was, that the premises were exempt from forced sale for the payment of the mortgage debt under the homestead laws of this State.

Esworthy being the head of a family and residing with the same, on the 22d day of March, 1875, purchased the premises in controversy of one William Johnson, received a deed therefor, took possession, and has occupied the same as a residence ever since.

At the time of the purchase he paid a part of the purchase money, and executed to Johnson his two notes for the balance, payable in one and two years, with interest, and both signed by William Starr, as security. These notes Johnson endorsed to plaintiff in error before their maturity, for a valuable consideration. And on the 21st day of December, 1875, Esworthy, by an arrangement then made with Kimball, took up these notes and gave him in lieu of them two others, for the amount of principal and interest then due, payable one year from that date.

To secure these notes, Esworthy executed to Kimball the mortgage now sought to be foreclosed upon the same premises conveyed to him by Johnson, but his wife did not join with him in its execution. These notes were given for purchase-money; no change in the form of the instrument by which the debt is evidenced or secured will avail to change the character of the debt. When purchase-money is the consideration of any one instrument, it will so continue in any other. Smyth on Homestead Exemptions, 221; Austin v. Underwood, 37 Ill. 438; Magee v. Magee, 51 Ill. 500; Lawson v. Vance, 8 Cal. 271.

The debt secured by the mortgage being purchase money, it was not necessary that Esworthy's wife should join with him in the execution of the mortgage, to subject the homestead to its payment.

It is insisted by defendants in error, that as plaintiff in error is not entitled to a vendor's lien, he cannot enforce the payment of the debt as purchase-money.

The statute exempting the homestead from forced sale for the payment of debts, contains this exception: “No property shall by virtue of this act be exempt from sale for non-payment of taxes or assessments, or for a debt or liability incurred for the purchase or improvement thereof.”

The exemption and exception from its operation are parts of the same statute, and must be read together as one act; and as to the excepted cases, it is as if there were no exemption. Smyth on Homestead Exemptions, 65.

If the only purpose of this exception to the statute was to preserve the vendor's lien, it is difficult...