Warrick v. Hull

• Decision Date: 28 March 1882
• Parties: EMMA E. WARRICK et al.v.CHARLES S. HULL.
• Court: Illinois Supreme Court

102 Ill. 280

1882 WL 10223 (Ill.)

EMMA E. WARRICK et al.

v.CHARLES S. HULL.

Supreme Court of Illinois.

Filed at Springfield Mar. 28, 1882.

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Macon county; the Hon. C. B. SMITH, Judge, presiding.

Mr. H. PASCO, for the appellants.

Messrs. ROBY, OUTEN & VAIL, for the appellee.

Per CURIAM:

On the 3d day of March, 1876, Silas E. Warrick was the owner in fee of an eighty-acre tract of land, upon which he then resided with his family, consisting of a wife and children, as their homestead, and where he still resides with them. Being indebted to John W. Hull for borrowed money, Silas E. Warrick, on the 3d day of March, 1876, executed and delivered to Hull his promissory note for the sum of $1500, payable two years after date, with interest at the rate of ten per cent per annum, payable annually, and undertook to secure the same by mortgage on the land on which he resided as his homestead, which mortgage contained the usual power of sale in case default should be made in the payment of the note and interest. The mortgage appeared to be signed and regularly acknowledged by Silas E. Warrick, and Emma, his wife, and was recorded in the proper office in the county where the land is situated. After the death of John W. Hull, and after the note secured by the mortgage had become due, and default had been made in the payment of the note and interest, Charles S. Hull, executor of the estate of John W. Hull, deceased, advertised the land for sale under the power contained in the mortgage. The original bill in this case was then filed by Emma E. Warrick, wife of the mortgagor, to enjoin the proposed sale of the property. Two grounds are set forth in the bill as the basis of the relief asked: First, that Charles S. Hull, as executor of the estate of John W. Hull, could not rightfully make any sale of the property under the power contained in the mortgage; and second, that she had never acknowledged the mortgage as required by the statute in order to release her homestead in the premises, and as to her homestead the deed was inoperative. After filing his answer to the original bill, the executor filed a cross-bill, making the original complainants defendants thereto, praying to have the mortgage foreclosed. The cause was heard on the original and cross-bills, the answers of the respective defendants thereto, and the proofs, and the circuit court dismissed the original bill and decreed a foreclosure of the mortgage on the executor's cross-bill. That decree was affirmed in the Appellate Court, and now the original complainants, and who were made defendants to the cross-bill, bring the whole case before this court on appeal.

One point made by the parties appealing is, it was error in the circuit court to dismiss their original bill. Since the executor has filed his cross-bill to foreclose the mortgage, that part of the original bill which asked to have the proposed sale under the power contained in the mortgage enjoined because the executor could not rightfully execute the power, is not a matter of any consequence. The filing of the cross-bill may be treated as a waiver of any purpose to make a sale of...