Thornton v. Wyatt Boyden.

• Decision Date: 30 April 1863
• Citation: 1863 WL 3094,31 Ill. 200
• Parties: HIRAM W. THORNTONv.WYATT BOYDEN.
• Court: Illinois Supreme Court

31 Ill. 200

1863 WL 3094 (Ill.)

HIRAM W. THORNTON

v.WYATT BOYDEN.

Supreme Court of Illinois.

April Term, 1863.

APPEAL from the Circuit Court of Mercer county; the Hon. AARON TYLER, Judge, presiding.

This was an action of ejectment, instituted in the Circuit Court by Wyatt Boyden against Hiram W. Thornton, to recover the possession of the east half of the south-east quarter of Section three, in Township fourteen north, of range four west, situate in said county of Mercer, containing eighty acres, in which the plaintiff claimed a fee simple title. The plea of not guilty was filed, and by agreement, the issue was tried by the court, without the intervention of a jury.

The plaintiff derived title through a deed of trust, executed by the defendant, Thornton and his wife, to Mylo Lee, on the 5th day of June, 1857, whereby the premises in question were conveyed to Lee in trust, to secure the payment of a debt therein acknowledged to be due from Thornton to the plaintiff, Boyden.

The deed conferred the power upon Lee, the trustee, in the event of a failure on the part of Thornton to pay the debt thereby secured, at its maturity, to proceed to sell the premises “at public auction, at the front door of the court-house, at the county seat in Mercer county, for cash in hand, first giving thirty days' notice of the time, place and terms of sale, together with a description of the property to be sold, in one or more of the newspapers printed in the county of Mercer,” etc.

The certificate of acknowledgment attached to the deed, was in the usual form, that Thornton and his wife acknowledged that they executed the same as their voluntary act and deed for the purposes therein expressed, and that Elizabeth F., wife of said Hiram W. Thornton, having, by the officer, been made acquainted with the contents of said deed, and being by him examined separate and apart from her husband, “acknowledged that she had executed the same, and relinquished her dower to the premises conveyed, voluntarily, freely and without compulsion of her husband, and that she had no desire to retract the same.”

The body of the deed contained no words of release of the homestead right of the grantors, in the premises.

The debt intended to be secured by this deed of trust, not having been paid at its maturity, Lee, the trustee, proceeded to give notice of the sale of the premises, by virtue of the power granted in the deed, to be made on the 28th day of December, 1859.

The sale did not take place on the day thus appointed, but was adjourned according to the following announcement which was published under the orignal notice:

“POSTPONEMENT.

The above sale is adjourned for eight days from this date, and will take place at the hour of two o'clock, P. M., on the 5th day of January, 1860.

M. LEE, Trustee.

December 28, 1859.”

It was proved that the original notice before mentioned, was published in one of the newspapers specified in the deed, from the 22nd day of November, 1859, to the 28th of December inclusive, and that the postponement of the sale at the foot of the original notice, was first published on the 3rd of January, 1860, and was published but once. No other notice was given of the sale, which took place on the 5th of January, in pursuance of the adjournment.

The proof of the notice of the sale and of the postponement, was made upon the trial below, by the plaintiff; the defendant objected to the introduction of the evidence upon that question, but the Circuit Court overruled the objection, and the defendant excepted.

The sufficiency of this notice is one of the questions made upon the record.

One of the witnesses testified on behalf of the defendant, upon the trial, that he knew the land in controversy. It had been improved eight years; the defendant made the improvements, and was still cultivating it, and was in possession of it on the 22nd of August, 1860, claiming to own it; that no person resided upon this eighty acres, but that the same fence inclosed the eighty, and the town lots on which the defendant resided. The eighty acres adjoin the town lots of the town of Millersburg on the south. The defendant's dwelling-house and stable were situated upon four of these town lots; he was engaged in farming the lots and the eighty, all under one inclosure.

That the defendant had a wife and family, and resided with them on these premises, during the year 1857, and still resided there.

The defendant then offered to prove by several witnesses, that all through the year 1857 the defendant had a family, consisting of wife and children, and resided with them on the premises in controversy, and has ever since, occupying and claiming the whole premises as his homestead; that the lots and the eighty have, during the whole time, been in one inclosure, and used as one entire premises.

That the whole premises, with the improvements thereon, were not worth, at the time of the execution of the trust deed, one thousand dollars, and were not at the time of the trial.

The plaintiff's objection to this evidence was sustained by the Circuit Court, and the defendant excepted. The issue was found for the plaintiff, Boyden. The defendant interposed his motion for a new trial and in arrest of judgment, which motion was overruled, and judgment entered in pursuance of the finding.

From that judgment the defendant below took this appeal, and assigns for error:

1. That the court below admitted improper evidence on the part of the plaintiff.

2. That the court excluded proper evidence offered by the defendant.

3. That the finding was for the plaintiff.

4. That the court overruled the defendant's motion for a new trial, and in arrest of judgment; and

5. That the judgment was entered for the plaintiff.

Messrs. GLOVER, COOK & CAMPBELL, for the appellant.

1. There was no sufficient notice of the sale of the land by the trustee. The deed required thirty days' notice, and did not provide for a postponement. The sale was postponed,

and only eight days' notice was given, and so the sale was not within the scope of the authority of the trustee. 11 Grat. 281; 11 Ind. 359; 7 Ind. 356; Bloom v. Van Rensselaer, 15 Ill. 502; Mathews v. Hamilton, 23 Ill. 470; Blinn et al. v. Evans, 24 Ill. 317.

2. The evidence proving a homestead should have been admitted. Kitchell v. Burgwin, 21 Ill. 40; Vanzant v. Vanzant, 23 Ill. 536.

Messrs. H. M. WEAD and D. P. JONES, for the appellee.

1. The notice of the adjournment of the sale was sufficient. 18 How. U. S. R. 143; 5 Johns. R. 345; 11 Maine, 371; 4 Barr. 153; 9 Mass. 265.

2. The law of 1851 exempted the homestead “from levy and forced sale under any process or order from any court of law or equity in this State,” and not from sales under trust deeds. Galena and Chicago Union R. R. Co. v. Menzies, 26 Ill. 124; Smith v. Marc, 26 Ill. 156.

3. The act of 1857, requiring the wife to join in the release, and stating the object of the act to be “to require, in all cases, the signature and acknowledgment of the wife, as conditions to the alienation of the homestead,” has no broader scope or signification. The words “ in all cases,” are limited by the law to which they relate, and are to be construed as if the sentence read, in all cases of forced sale under any process or order of any court of law or equity, etc. Scates' Com. 576.

4. The deed is good as to the excess in value over one thousand dollars. 5 Cal. R. 506; 38 N. Hamp. R. 72; 2 Gray's R. 385.

5. To sustain the deed, then, as to the excess, it must be held valid as to the whole. The adoption of any other rule would not only operate unjustly to the grantee of the deed, but the householder would be protected beyond the extreme limits of the rights secured to him by the law.

The statute does not render the conveyance void, but entitles the grantee to all the title and interest which the husband had, and to the possession. The exemption is for the benefit of the wife and children, but it does not inure to them till the death of the husband. 30 Verm. 680; 18 Ill. 518.

The fact that the wife and children may eventually have an interest in the property, which cannot be alienated, except in a particular way, furnishes no better reason why the husband should not convey his interest and transfer the possession, than that furnished by the fact that the wife was entitled to dower on the death of her husband.

6. Under the statute, the householder and his family are not entitled to retain the homestead as against a judgment creditor, where it exceeds $1,000 in value; but such creditor may sell the same, and have the excess over $1,000 applied to the payment of his judgment, and such a sale carries all the right, title and interest of the householder, including the homestead right. The homestead in this case sold for $1,669.80 under the trust deed. The householder had no greater right, as against the deed, than he had as against the judgment. There was no mode of setting off the homestead, and therefore he had no right to anything more than $1,000 in money, under the law, which sum he might have compelled the trustee to pay to him out of the proceeds of the sale. That being the extent of the householder's rights, the sale and conveyance did not affect that to which he was really entitled under the homestead law, and therefore need not have contained an express waiver and acknowledgment.

7. The right of a person to alienate his property is a universal right, existing from the remotest period, and cannot be divested by legislative enactment. No legislature has power to say that a man cannot sell and convey his property. Any such law would be contrary to natural right, and void. Our legislature and court have ever recognized and conceded these principles. Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of ejectment commenced in the Mercer Circuit Court and brought here by appeal. The issue was tried by the court without a jury, and a verdict for the plaintiff, the appellee ...