Snell v. Snell

• Court: Illinois Supreme Court
• Writing for the Court: MULKEY
• Citation: Snell v. Snell , 123 Ill. 403, 14 N.E. 684 (Ill. 1888)
• Decision Date: 19 January 1888
• Parties: SNELL et al. v. SNELL et al.

123 Ill. 403

14 N.E. 684

SNELL et al.

v.SNELL et al.

Supreme Court of Illinois.

January 19, 1888.

Appeal from circuit court, La Salle county; CHARLES BLANCHARD, Judge.

Bill in chancery, filed by Ellen J. Snell, John Snell, and William Snell, the widow and heirs of Philip Snell, deceased, against Byron D. Snell and others, for the assignment of homestead in land purchased by Byron D. Snell at the foreclosure of a mortgage executed by Philip Snell and wife to Jane Snell. There was a decree for complainants, and the defendants appeal.

Rector C. Hitt, for appellants.

Duncan, O'Conor & Gilbert, for appellees.

MULKEY, J.

On the twenty-sixth day of January, 1881, Philip Snell was the owner in fee of the land in controversy, and resided thereon with his family, as a homestead. On that day he mortgaged the same to Jane Snell to secure an indebtedness of $1,839.87, his wife, Ellen J. Snell, joining in the deed. The land lay in section 27, but by mistake it was described as in section 20. The mortgage contained a proper and formal release of the homestead, and was, in every respect, strictly accurate, except the error as to the number of the section. On the ninth day of February, 1884, Snell and wife executed to the Northwestern Mutual Life Insurance Company another mortgage upon the same land, by its proper description, to secure an indebtedness of $3,000. This mortgage also contained a release of homestead, and was otherwise formal and correct. On the sixteenth of August, 1884, Snell died, leaving Ellen J. Snell, his widow, and two minor children, John and William Snell, his only heirs at law. On the twentieth of October, 1885, Jane Snell filed a bill in the La Salle circuit court to correct her mortgage, in respect to the erroneous number of the section, and to have the same foreclosed, making the widow and two minor children of Philip Snell parties. The former made default, and the children answered in the usual way by a guardian ad litem, no question being raised, the one way or the other, about the right of homestead. The court, on the hearing, entered a decree in conformity with the prayer of the bill. On the first of December, 1886, the master sold the premises under the decree to Byron D. Snell, and, the same not having been redeemed within the time allowed by law, Snell received a master's deed therefor. On the ninth day of February, 1887, the widow and heirs of Philip Snell, the appellees herein, filed the present bill, claiming an estate of homestead in the premises, and prayed that the same be set off and assigned to them, as provided by law. The court, on the hearing, entered a decree in conformity with the prayer of the bill, and the defendants bring the case here by appeal.

Before proceeding to consider the merits of the controversy, it will be necessary to dispose of a preliminary question which challenges the jurisdiction of this court. The case is brought here on the hypothesis that it involves a freehold. This is denied by appellees' counsel. They insist that a homestead right does not, in any case, constitute a freeholdestate, otherwise one could not have such a right where he has a leasehold merely; and that, as respects minor children, upon whom a homestead often devolves, their interest can never exist beyond a definite number of years, which is inconsistent with the idea of a freehold. The rationale of the argument, as we take it, is that, because the estate of homestead is of a fixed and uniform value, the quantity of interest, using that term in its technical sense, must therefore necessarily be the same in all cases, which makes it more in the nature of an incumbrance than anything else; and hence it is concluded that cases in volving a homestead must, for jurisdictional purposes, be placed in the same category with foreclosure suits, which are uniformly held not to involve a freehold. However plausible the argument may be, we do not regard it as sound. It is directly in conflict with the conclusion reached in Browning v. Harris, 99 Ill. 456, where will be found a full expression of our views on this subject. If, as is contended, appellees' claim of homestead is wholly unaffected by the mortgages from Snell and wife to Jane Snell, and to the Northwestern Mutual Life Insurance Company, and the subsequent proceedings in court founded thereon, it is clear from the case just cited that, upon the death of Philip Snell, his widow took a life-estate, for the use of herself and children, to the extent of $1,000 in the mortgaged premises, and it is hardly necessary to add that a life-estate in land is, by all the authorities, a freehold estate. Not only so, but appellees have in this very case obtained a decree directing, if it can be done without injury to the estate, that there be set off and assigned to them a part of the mortgaged premises, not exceeding $1,000 in value, to be held by the widow, in severalty, for the use of herself and children, as a homestead. When so assigned, she would clearly have, for the use of herself and children, an estate for life in the premises, which, of course, would be a freehold estate. If, in the opinion of this court, that decree, under the facts in the case, was unwarranted, and appellees shall ultimately fail in their suit, it is clear they will simply lose the freehold which the lower court directed to be assigned to them, and, per consequence, it will be gained by the adverse party. This, according to the rule laid down in Railroad Co. v. Watson, 105 Ill. 217, and which has been invoked by appellees' counsel, demonstrates that a freehold is involved in this...