Boyd v. Cudderback

Mr. Justice "W alees delivered the opinion of the Court. This record presents the question, whether the execution of the mortgage was sufficient to release the right to claim the premises as a homestead. This depends upon whether the acknowledgment on the part of the wife is in accordance with the law. By the original act, adopted in 1851, it was not necessary that the wife should join in the release, to. render it valid. By the amendatory act, adopted in 1857, (Scates’ Comp. 577,) it is declared that the words “ and his wife if he have one,” shall be inserted after the words “ subscribed by such householder,” in the original act. The law as it now stands, requires that the release shall be in writing, subscribed by the householder and his wife if he have one, and acknowledged in the mode in which conveyances of real estate are required to be acknowledged. In the case of Patterson v. Kreig, 29 Ill. 514, it was held, that it is necessary, that the wife shall join in any deed alienating the homestead, under this' amendatory act. That act declares that it is the object of the statute, to require in all cases, the signature and the acknowledgment of the wife, as a condition to the alienation of the homestead. ' Then the question arises as to what the acknowledgment must contain to be operative as a release of the right. In relinquishing dower, the wife must acknowledge, separate ana apart from her husband, and after being fully informed as to the contents and effect of the deed, that she relinquishes her dower freely, voluntarily, and without the compulsion of her husband. So in conveying the wife’s estate, she must acknowledge that she executed the deed freely and voluntarily, and does not wish to retract. And in each of these cases, the officer must certify as to what the wife did acknowledge after he had examined her separate and apart from her husband. It is the conformity of the acknowledgment to the statute, which is operative to pass the’ wife’s title to her own real estate, or to relinquish her dower in that of the husband. In conveying her estate, if she acknowledged that she relinquished her dower, it would hardly be held sufficient. Because that would not be the estate intended to be conveyed, and she must acknowledge that she intends to and does convey that estate. In the certificate of acknowledgment to this mortgage, the wife only relinquishes her fee simple estate in the premises. If the mortgaged premises belonged to her husband, then she had dower in the premises, and she also had, under the statute, a right to claim it as a homestead. The latter right she has not acknowledged that she released, but it is only her right to the fee. This is not sufficient, as, to be effective to bind her homestead right, it should appear from the certificate, that she acknowledged that she Released it freely and voluntarily, without compulsion.' This was the construction given to the act in the case of Vanzant v. Vanzant, 28 Ill. 536. It is, however, urged, that the law only relates to forced sales under a judgment, order or decree of a court. This is no doubt true of the act as it stood before the amendment of 1851, which declares that it is the true object of the act to require, in all cases, the signature and acknowledgment of the wife as conditions to the alienation of the homestead. This amendment is broader than the original act, as it embraces all cases of alienation, whilst the former was confined to forced sales under judicial proceedings. Thus it will be perceived, that in adopting such comprehensive language in the amenda-tory act, that the design was something more than merely to require the wife to join in the execution of the release. It seems to have been to give her the right to render the provisions of the act operative not only as to forced judicial sales, but as to all others, involving the right to the homestead. The legislature no doubt used the term “ alienation ” in its ordinary and legal sense. The word is defined by lexicographers to be, an act whereby one man transfers the property and possession of lands, tenements or other things to another person. Then the alienation of the homestead, is the transfer of the title and the possession, and can only be made in the mode prescribed by the statute. Any failure to comply with the conditions there imposed fails to affect the right to the homestead. Nor can it become any more operative as a deed of trust, a mortgage with a power of sale, or conveyance of the land, to relinquish the right to insist upon the benefits of the statute, than a want of compliance with the act in-simply releasing the right, without attempting to incumber or convey the property. The amendatory act was manifestly adopted to protect the wife and family in the enjoyment of the homestead, against both the acts of the husband and his creditors. It was intended that no act of his or theirs, until she did what the statute has required, should deprive her and the family of a retreat from the storms of adversity — a home. Whatever may be our opinion as to the policy of the statute, we must carry out its provisions so as to effectuate the intention of the law-makers. If it is found to operate with inconvenience, or to produce hardship, it is for the legislature to apply the corrective. We can only give effect to the law as it is adopted. Whatever rights, if any, the mortgagee may have acquired by this instrument, it confers no power to sell the home stead during the lifetime of the wife, if she shall occupy i as a residence. In the event of her death, or if the family shall cease to occupy it as a residence, it will then be time to determine what rights the mortgagee has acquired.* The act only applies to the homestead to the value of one thousand dollars. If this property is of more than that value, the surplus would be subject to be applied on the mortgage debt, in the mode prescribed in the statute, on a foreclosure of the mortgage, or on a judgment recovered on the debt, unless other liens had apriority to this mortgage or such a judgment. As to the surplus, the mortgage is no doubt operative and binding. Inasmuch as the mortgage was inoperative to authorize the sale of the land embraced in it, because of its being the homestead, the decree of the court below must be affirmed. Decree affirmed. Footnotes [*] See the case of Young and Wife v. Graff, 28 Ill., 29, where premises were conveyed by deed of trust, and upon foreclosure in equity, a sale of the premises was decreed, subject to the homestead right of the grantors, that right not having been released in the deed.