Smith v. Marc

Breese, J. The appellant’s counsel argues very ingeniously, that the object and design of the Homestead Act was to prescribe a mode by which the homestead could be alienated, and at the same time, in effect to declare all attempts at alienation invalid, unless they conform to that mode. He cites the amendatory act of 1857, as expressive of the intention of the legislature as to the objects and requirements of the Homestead Act, as it was originally passed. That amendment is as follows: The first section of an act to exempt homesteads from sale or execution, approved February 11th, 1851, be amended by inserting after the words “ subscribed by such householder,” the words “ and his wife, if he have one,” it being the object of this act to require, in all cases, the signature and acknowledgment of the wife, as conditions to the alienation of the husband. (Scates’ Comp. 577.) This amendatory act was passed February 17th, 1857, and however it may affect conveyances executed after its passage, it cannot affect those made prior thereto. The cases referred to by the appellant, were cases of forced sales by order of court, and came directly within the provisions of the act of 1851, hence the court said, in the case of Kilchell, 21 Ill. 40, that it must appear that the privileges and advantages of the act, were in the contemplation of the parties executing the deed, and that those advantages were expressly released or waived in the mode pointed out in the statute. And in the case of Vanzant, 23 ib. 536, that the insertion in the deed of conveyance, of the special or general covenants, without express reference in the deed to the Homestead Act, could not operate as a release or waiver. It is asked, if those mortgages had contained a power of sale by the mortgagee, would that have made them valid alienations of the homestead? We answer, that the object of the law, before the act of 1857, was to declare simply, that if a mortgage did not. contain an express release or waiver of the advantages of the Homestead Act, the premises, if a homestead, could not be levied upon and sold on execution by forced sale, under any order or process from any court of law or equity. Prior to the amendatory act of 1857, there was no prohibition whatever upon the voluntary alienation of the homestead, but simply, an exemption of it, from a levy and forced sale under judicial process, and parties were not to be deemed as having waived this right of exemption, except in the mode prescribed by the act. The amendatory act, has, perhaps, a broader scope and signification. When a case under that law comes before us, we will endeavor to dispose of it, by a fair application of it, as we may understand it, to the facts which may be shown. A case from Texas has been cited, Sampson v. Williams, (6 Texas, 109). We have not the case before us, nor the laws of Texas, but understand from the brief in this cause, that the homestead is secured in that State, by a constitutional provision which is not quoted in the brief. We cannot therefore say that the case cited is applicable. The legislature, it seems to us, had in view solely, the protection of the homestead from a forced sale by judicial process, but from no other kind of sale. A formal release or waiver is made necessary to subject it to a forced sale. See the case of Ely v. Eastwood, ante, 107, decided at this term. The judgment is affirmed. , Judgment affirmed.