Mcdonald v. Crandall

• Decision Date: 31 January 1867
• Citation: 1867 WL 5016,43 Ill. 231,92 Am.Dec. 112
• Parties: JOHN MCDONALDv.JOHN R. CRANDALL.
• Court: Illinois Supreme Court

43 Ill. 231

1867 WL 5016 (Ill.)

92 Am.Dec. 112

JOHN MCDONALD

v.JOHN R. CRANDALL.

Supreme Court of Illinois.

January Term, 1867.

APPEAL from the Circuit Court of Jersey county; the Hon. D. M. WOODSON, Judge, presiding.

This was an action of ejectment brought by John R. Crandall, in the Jersey Circuit Court, against John McDonald. The declaration contained two counts, for the recovery of lot ten, in block six, of Adams' addition to Jerseyville, Illinois. Plaintiff claimed to own the fee. Defendant filed the general issue. A trial was had by the court, a jury having been dispensed with, by agreement of the parties.

It was agreed by the parties, that Joshua Bartlett, on the 4th day of April, 1859, owned the lot in controversy, and on that day conveyed it to Horatio C. Twombly. That afterward, on the 23d day of June, 1862, Twombly and wife conveyed the property to Julius G. Koster, in trust, to secure a debt due from Twombly to plaintiff, for the sum of $324.20, due in six months from that date. The deed contained a power of sale by the trustee in case default should be made in payment of the debt. In the body of this deed there was a clause releasing the homestead exemption, and the wife acknowledged that she released her right to the homestead exemption, which is duly certified by the officer taking the acknowledgment. This deed was recorded in the proper office on the day it was executed.

Plaintiff also introduced a deed of conveyance from Koster, the trustee, for the property in controversy, to himself, dated on the 28th of February, 1863. It was admitted on the trial, that the trustee had given the proper notice, and, that default had been made in the payment of the money, and that Twombly, at the time he executed the deed to Koster, occupied and lived upon the premises with his family, and that the property in controversy was not worth more than $1,000.

The defendant introduced a deed from Horatio C. Twombly and wife to Nathaniel Twombly, as a trustee for Joshua and Joseph W. Bartlett, to secure three notes from H. C. Twombly, with the two Bartletts' securities, for $100, each payable to the trustees of schools T. 7, N. R. 10 W. in Jersey county. This deed bears date on the 4th of April, 1859, and was recorded on the 25th day of the following August, in the proper office. Neither this deed nor acknowledgment releases the homestead exemption.

Also a deed from Nathaniel Twombly, as trustee, to Joshua Bartlett, which conveys, for the consideration of $325, the premises in controversy, dated the 17th of November, 1862. Likewise, a deed from the trustee to Joshua Bartlett, executed for the purpose of confirming the former sale and conveyance to Bartlett, and to cure defects in the previous deed. This last deed was executed on the 16th of October, 1866. Also, a deed from Joshua Bartlett and wife, to defendant, dated on the 20th of December, 1862.

It further appeared, from the testimony introduced on the trial, that H. S. Twombly, in 1857, went into possession of the property under a conveyance from N. L. Adams. That to pay Adams he had borrowed a part of the money from the trustees of schools T. 7, N. R. 10 W. That one John Hart became his security for its payment, and, to indemnify him, Twombly and wife conveyed to him the premises in controversy. That on the 3d of April, 1858, these notes to the trustees were taken up, and new ones given by Twombly, and Joshua and Joseph Bartlett, as sureties, and Hart and wife conveyed the premises to Joshua Bartlett, who, on the next day, conveyed the premises to H. C. Twombly, and he at the same time executed the deed of trust to Nathaniel Twombly to secure the Bartletts against loss on the notes. That Joshua Bartlett was compelled to pay the notes and then purchased the premises at the trustees' sale. And that defendant had been let into possession under the deed of conveyance from the trustee of whom he purchased, and that he so occupied the premises.

The court found the issue for the plaintiff, whereupon defendant entered a motion for a new trial, which was overruled, and judgment rendered for the recovery of the lot. To reverse that judgment the defendant brings the case to this court by appeal.

Messrs. WARREN & POGUE, for the appellant.

Messrs. A. L. & R. M. KNAPP, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

In this controversy both parties derive title to the lot in dispute, from the same common source. One H. C. Twombly and wife, at different times, executed trust deeds to two different trustees, to secure debts owing by him to different parties. Default having been made in payment, each of the trustees at different times advertised and sold the property, which was purchased by several persons. Appellant claims by purchase at the sale under the trust deed first executed, which was also first recorded, and under which he had entered into, and was holding, possession when this suit was brought to recover the premises. Appellee claims by a purchase under the trust deed last executed, and under which it was sold by the trustee in the mode required by the instrument. Twombly and wife did not, by the first trust deed, relinquish their right to claim the benefit of the homestead law, but did in the latter. It also appears, that he was within the provisions of the act, and the deeds having been made after the adoption of the amendatory act of 1857, these trust deeds were subject to its provisions.

This, then, presents the question whether a deed executed subsequently to the passage of the amendatory act of 1857, without relinquishing the homestead right, is void, or whether it takes effect, in case the property is surrendered, and the purchaser is put into possession by the grantor. Or may he, after a sale of the fee, without releasing the homestead, and letting the purchaser in, sue for, and recover the premises under the right to claim the homestead. Or can he afterward sell and convey the homestead right to another, so as to authorize the second purchaser, to recover and hold the property under the homestead right, as against the owner of the fee.

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