Stout v. Hill

Mr. Chief Justice Breese delivered the opinion of the Court: This was an action of assumpsit, brought in the La Salle Circuit Court, by Joseph Stout against Warren Hill, on an instrument of writing, of which the following is a copy: “Due Daniel Condon, or order, $464, with interest at ten per cent, to be paid as soon as I have time to foreclose a mortgage given by William Cantlin and Michael Boach to said Condon, dated September 6, 1856, for $480, and by him this day assigned to me, and to sell said land by a judicial sale, oías soon as I shall otherwise dispose or settle said mortgage. “ May 4, 1858. WABBEM HILL.” Condon indorsed this note without recourse, to the plaintiff, Stout. The case depends upon the construction to be piit upon this writing. The record shows the land mortgaged was covered by a homestead right, and that right set up in the proceedings to foreclose, and properly recognized and allowed by the court. It is very evident, we think, that, by the express terms of the instrument, the money specified in it is not yet due. It was not to be paid until the mortgage could be foreclosed and the land sold. The homestead claim has prevented this, as this court has repeatedly decided, consequently the time of payment has not yet arrived, and the suit was premature. Should the homestead right expire by its own limitation as provided in the statute, or be abandoned, then the note will be due and payable, and not before. The judgment of the Circuit Court must be affirmed. Judgment affirmed.