Magee v. Magee
| Decision Date | 30 September 1869 |
| Parties | FENWICK H. F. MAGEEv.NORMAN R. MAGEE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding. The opinion states the case.
Mr. JOHN CLARK, for the plaintiff in error.
Mr. ROBERT G. INGERSOLL and Mr. S. D. PUTERBAUGH, for the defendant in error.
It appears that some time in the year 1862, plaintiff in error entered into a contract with one Pairo for the purchasing of a forty acre tract of land, agreeing to pay therefor the sum of $400, and for which he executed his promissory notes, payable in one, two and three years, with seven per cent. interest per annum, and received a bond for a deed. In the month of October, 1866, plaintiff in error, being wholly unable to pay the amount due on the purchase money, applied to defendant in error and requested him to make the payments, and proposed to give him a mortgage on the land as soon as he received a deed, to secure its re-payment. Defendant in error acceded to the proposition. The parties thereupon went to Peoria and saw Bourland, the agent of Pairo, and defendant paid $244 in money, and became surety for plaintiff in and for the sum of $100 more, on the purchase money, which he subsequently paid.
Plaintiff in error then agreed to pay the money to defendant in error in the following March, and to execute a mortgage on the premises to secure its payment, immediately on their return home, and on their arrival there in pursuance to the agreement, they went to a justice of the peace to have it executed, but he having no blanks, it was deferred, it being then agreed that it should be executed another time. It was, however, neglected, and defendant in error subsequently demanded the mortgage, when plaintiff in error refused, and alleged that he owed defendant in error nothing. It appears that defendant in error paid on the purchase of the land $346.50, no portion of which ever passed into the hands of plaintiff in error, but it was paid directly to the agent of Pairo, on the contract.
It appears that at the time the money was advanced by defendant in error, plaintiff in error resided upon the land. The bill was filed in the court below by defendant in error to enforce his lien on the land, and on a hearing the court below decreed the relief prayed; and this writ of error is prosecuted to reverse that decree.
It is urged as a ground of reversal, that inasmuch as the premises in controversy were the homestead of plaintiff in error when the money was paid it could not become a lien on the land. That the money thus advanced by defendant in error was not and did not become a part of the purchase money for the premises. The second section of the homestead act excepts debts and liabilities for the purchase or improvement of the homestead from the operation of the law, and leaves it liable to sale for such debts in the same manner as other real estate. The only question, then, which this record presents is, whether the money advanced by defendant in error was purchase money.
In the case of Austin v. Underwood, 37 Ill. 438, it was held, that when a party owning and residing upon a homestead, purchases and receives a conveyance of an adjoining tract to be used in connection with, and as a part of, the homestead, and procures the...
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