Allen v. Hawley

Mr. Justice Walker delivered the opinion of the Court: In the autumn of 1857, appellee Robert Hawley obtained a loan of $1200 from appellant. Hawley executed his note bearing date November 12th, 1857, for $1800, and at the same time he and his wife, to secure the same, executed a deed of trust to 1ST. D. El wood upon the southwest quarter of section 36, township 32 north, range 9 east, in Will county, but Mrs. Hawley did not release her right of homestead. Hawley owned the fee in the east half of the quarter, and held the other under a contract of purchase from one Steel, upon which he owed about $400. When the payment matured under this purchase Hawley was unable to meet it, but obtained an extension of thirty days. During that time some arrangement, but what is not very definitely shown, was made, by which ap- . pellant advanced the money to Steel and received from him a deed for the west half of the quarter, and Hawley received from appellant a contract for a conveyance, but reserving the right to declare a forfeiture in ease of a failure by Hawley to meet the payment. It was subsequently declared forfeited, and Hawley afterwards tendered the money, but appellant refused to convey, and Hawley filed his bill to redeem, treating the transaction as a loan. He afterwards filed his amended bill, in which he claimed the west half as his homestead at the time he executed the trust deed, and that he had not abandoned it, but had ever since and still occupied it as such. Prior to filing the bill, Elwood, at the instance of appellant, sold the premises, and appellant, it seems, became the purchaser. Subsequently a decree was, by stipulation, entered against Hawley for $2125 in favor of Allen, to be paid on or before the 1st of July, 1861. On payment, Allen was to convey all of the premises to Hawley; but, on failure to pay, he was authorized to hold the premises for the year 1861 as Allen’s tenant; and it was further decreed that, if the money was not paid, Hawley’s equity of redemption should stand barred and foreclosed after the year 1862. Hawley and wife afterwards filed a bill charging that the stipulation under which the decree was rendered was fraudulent and without their knowledge or consent; and the bill prays that the decree be set aside and vacated, and Hawley be permitted to redeem. On a hearing on the bill, amended bill, answers, replications and proofs, the court below decreed the relief sought, and Allen appeals to this court. A careful examination of the record fails to show that appellee has proved that the stipulation was fraudulent. He admits that he was cognizant that his attorneys were engaged in making the arrangement, and fails to state that he forbade its consummation; he only denies that he consented to the terms of the decree. A number of witnesses, who had every means of knowing the facts, swear that he did consent to the terms of the stipulation, and only contended for longer time to make payment of the money than was at first proposed, and his demand was in part conceded. His attorney in the former suit swears he read the stipulation to him before the decree was signed, and he made no objection. All the evidence considered, we are of opinion that he knew of and consented to the terms of the decree; and, having failed to establish the charge that it was obtained by fraud, he must be bound by it and held to all of its terms and conditions. It remains, however, to determine whether his wife, who is not shown to have consented to the decree or to have in any manner released her right of homestead, is bound by it so far as to be precluded from claiming that right in the premises. Appellees were never invested with the fee to the west half of the quarter. They, at most, held but an equitable title to that tract. It appears that Hawley had purchased it from Steel; had paid a portion of the -purchase money; had entered into possession under the contract, tendered the balance of the purchase money, built a house upon it and occupied it with his family under such circumstances- as gave him and his wife a homestead right, if the title was-of that character as was contemplated by the general assembly when the right was conferred. When he tendered the purchase money due on the west half he then became invested with an equitable title that he could at pleasure enforce and convert into a legal title in fee, and thereby became the owner, within the meaning of the statute, and he became vested with a right of exemption under the statute against the world except as to appellant, and against him upon the payment of the balance of the purchase money, and he only lost the right by consenting to the decree. But, as Mrs. Hawley did not relinquish that right when she executed the trust deed, her right to insist upon the exemption was not affected by the sale under it made by Elwood. She was, as we have seen, no party to the consent that the decree might be entered, nor does the evidence even show that she knew of its entry, and hence her rights were not affected by it. It is against the policy as well as the terms of the homestead law to permit the husband to deprive the wife of her right to claim the homestead except by removal with his family from the place. He could, therefore, make no stipulation for a decree that would deprive her of the right. The act of 1857 provides that, to release her right, she must in all cases sign and acknowledge the instrument by which the right is relinquished. If it is done by decree rendered by consent, she must at least consent to its rendition. Pardee v. Lindley, 31 Ill. 174; Moore v. Titman, 33 Ill. 358; Vanzant v. Vanzant, 23 Ill. 536; Boyd v. Cudderback, 31 Ill. 113; Patterson v. Kreig, 29 Ill. 514; Best v. Allen, 30 Ill. 30. Other cases might, if necessary, be referred to in support of the proposition. It has been repeatedly held, that a wife, to preserve her right, where she has not signed a mortgage and released the right, is not, where a foreclosure is had, compelled to set up the right. But she may subsequently sue for and recover it by original bill. Mooers v. Dixon, 35 Ill. 208; Wing v. Cropper, 35 Ill. 256; Silsbe v. Lucas, 36 Ill. 462; Hoskins v. Litchfield, 31 Ill. 137. And where a foreclosure has been had, and the persons entitled to the right fail to set it up as a defense, they are not estopped from asserting the right by subsequent proceedings. Booker v. Anderson, 35 Ill. 66. It then follows that Mrs. Hawley may maintain this bill for the purpose of holding the homestead, subject only to the payment of the remainder of the purchase mo hey. This she must satisfy before the court will protect her in the right. Appellant having advanced the money to Steel, it became purchase money due appellant. But, under the decree to which Hawley consented, appellant has acquired possession and held the premises for several years. The question arises, shall he account for rent's and profits ? In the case of Mix v. King, 55 Ill. 434, it was held that the wife might sue for and recover her homestead, notwithstanding a recovery in ejectment against the husband, under which she was expelled fro pi the homestead. It was also held, in the same case, that she might recover rents for the period she was kept out of possession, deducting therefrom the taxes and necessary repairs. When the same case was again before the court it was held that, inasmuch as the premises were of larger value than the homestead exemption, the rents should be apportioned according to the value of the property, or it would be equitable to allow her interest on $1000, the value of the-property exempt, for the time she was deprived of its use. The court below should have decreed to Mrs. Hawley a homestead in the west half of the quarter, upon the condition that she pay the balance of the purchase money, if any should be found due thereon after an account should be taken, and after deducting the rents and profits of the homestead, less taxes and necessary repairs, or after deducting the interest on $1000. In taking the account, if rents should be allowed, it should only be for the use of the homestead, and not the eighty acres, if that was worth more than the amount of the exemption. If anything should remain on the purchase money, she should have a reasonable time within which to pay it before she would be deprived of the homestead. The decree of the court below is reversed and the cause remanded. Decree reversed.