Halliday v. Hess

Mr. Justice Magruder delivered the opinion of the Court r This is a bill filed by appellee for the purpose of correcting a mistake in a deed. The decree below was in accordance with the prayer of the bill. On July 5, 1887, Abram Hess and Mary Elizabeth Hess, his wife, conveyed certain premises to George W. Hess, the appellee, by the following description: “commencing at the S. E. corner of the N. E. qr. of section 8, and running north 52 rods, thence near a S. W. direction 56 rods, thence South 11^- rods, thence east on the half section line 30 rods and 7 feet to the place of beginning, containing 6 acres and 11 rods, situated in the county of LaSalle in the State of Illinois, hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of this State.” The description does not state in what township or range the land lies; and it is claimed by appellant, that the court below erred in admitting parol testimony for the purpose of explaining the defect. We do not think that any error was committed in this respect. The description, taken in eonneetion with the proof, reveals a latent ambiguity. There are several sections numbered eight in LaSalle County; and this fact is ascertained outside of the deed, and does not arise upon the face of it. When an ambiguity is made to appear by the introduction of proof outside of the deed, it is a latent ambiguity, and may be explained by parol evidence. It being made to appear, that there is a section 8 in each of several different townships in the county, it may be shown by parol in what township the section 8 mentioned in the deed was located. (Dougherty v. Purdy, 18 Ill. 208; Bybee v. Hageman, 66 id. 519; Clark v. Powers, 45 id. 283; Billings v. Kankakee Coal Co. 67 id. 489; Fisher v, Quackenbush, 83 id. 310). Here, the evidence shows that the grantor, Abram Hess, owned a tract of land in section 8 in township 33, range 2 east of the 3d P. M. in said county, described by the metes and bounds and containing the quantity of land above mentioned ; that he occupied it at the time of the conveyance and had occupied it for about 20 years as a homestead, cultivating it as a vegetable garden; that he owned no other real estate in the county; that he and appellee were both present in an attorney’s office when the deed was drawn, and that the scrivener made a mistake in the description by leaving out the township and range. Where a mutual mistake in the description is made under such circumstances, the deed may be reformed to conform to the intention of the parties. (Lindsay v. Davenport, 18 Ill. 375; Martindale’s Law of Conveyancing, secs. 88, 89). The consideration paid by the appellee for the premises was $950.00. The court below found from the evidence that, at the time of the conveyance, the premises were worth less than $1000.00. After a careful examination of the testimony we cannot say that this finding is against the weight of the evidence, and consequently we are not disposed to disturb it, as the chancellor, upon the trial below, saw the witnesses and heard them testify. As the premises were occupied as a homestead at the time of their conveyance by Abram Hess and his wife to the appellee, and were worth less than $1000.00, and the homestead right was waived in the deed and in the acknowledgment, the appellee, who purchased in good faith so far as the proof in this record shows, took the land conveyed to him free from liens and incumbrances. It appears that appellant obtained a judgment against Abram Hess in 1875, and revived it in 1885, and issued execution thereon which was returned unsatisfied. But we think that, under the circumstances above set forth, the title to the premises passed to appellee free from the lien of said judgment. It has been said that “no conveyance of property exempt from execution can be considered fraudulent as against a creditor.” (Leupold v. Krause, 95 Ill. 440). We have held, that the debtor’s homestead, to the extent of $1000.00 in value, is exempt from levy and forced sale, and that, when the debtor sells it, the purchaser takes it to that extent free from all judgment liens. (Leupold v. Krause, supra). The decree of the Circuit Court is affirmed. Decree affirmed.