Ayers v. Hawks

Leland J. This was a bill filed by Rachel Hawks, in her own right, and as the next friend of her husband, Benjamin R. Hawks, to restrain appellant from selling the premises hereinafter described under a trust deed. There was a cross-bill by appellant against appellee,- Rachael Hawks, and her husband, Benjamin B. Hawks, for the sale of the premises described, to pay the note secured, out of the proceeds, etc. There was a prayer for the appointment of a guardian for the husband, who had become insane since the execution of the deed. It was alleged in the cross-bill that the husband and wife had executed and acknowledged the trust deed so as to release the homestead. The court below decreed that she had not, that as her homestead could not be set off, the premises be sold, and one thousand dollars be paid to her, and the surplus be applied to payment of costs, and the debt due appellant. The only question in the case is whether the wife has so executed and acknowledged the deed as to release the homestead right. "Whether the wife as next friend of her husband, or in her own right, was entitled to the one thousand dollars, is a matter of no moment to appellant. The decree protects him. The deed is signed by both husband and wife, and is acknowledged by both of them in due form to release the homestead. As to the wife, the certificate of acknowledgment contains the following, “ and expressly waived and released all right, claim, benefits, advantage and exemption under any and all homestead exemption laws so called.” That portion of the body of the deed which is on this subject, is as follows: “ And the said Benjamin B. Hawks, party of the first.part, hereby expressly waives and releases any and all right, benefit, privilege, advantage and exemption, under and by virtue of any and all statutes of the State of Illinois providing for the exemption of homesteads from sale on execution, or otherwise, and especially under the act entitled 1 An act to exempt homesteads from execution,’ passed by the General Assembly of the State of Illinois, A. D. 1851, and approved February 11th, 1851, and an act entitled ‘An act to amend an act to exempt homesteads from sale on execution,’ passed by said Assembly, A. D. 1857, and approved February 17th, A. D. 1857.” Immediately following come the covenants of warranty, commencing: “ And the said Benjamin B. Hawks, and Rachel E. Hawks his wife, party of the first part, for themselves, their heirs, executors and administrators, covenant,” etc., etc. The deed in the granting -clause is as follows: “ How ■therefore, the said Benjamin R. Hawks and Rachel E. Hawks (his wife), party of the first part, doth grant, bargain, sell and convey unto Henry S. Ayres, lot one.in block four, in Wymon’s addition to Amboy, &c., together with all and singular the privileges and appurtenances thereunto belonging.” The court below held that the husband alone had complied with the statute as to releasing the homestead right. We have no means of judging "whether the name of the wife was intentionally or accidentally omitted from the body of the deed, nor whether she appears in the acknowledgment merely because the form was constructed for wives, and the blanks were filled by the officer, and that she did not notice particularly that part of the ceremony, or whether she understandingly and deliberately made the acknowledgment. It would seem that her name was purposely omitted from the body of the deed, and it may be in anticipation of the fate which afterwards befell her husband, with the consequent separation, he now being at Elgin, hopelessly insane. The use of the verbs waives and releases would indicate intentional exclusion of the wife, not accidental omission to fill a blank; and yet we find that they both ‘•'■doth grant,” and in the covenants the singular and plural verbs, nouns and pronouns are strangely commingled. The statute in force at the time of the execution of the deed, which was April 4th, 1871, was as follows: “And no release or waiver of such exemption shall be valid, unless the same shall be in writing, subscribed by such householder, and his wife, if he have one, and acknowledged in the same manner as conveyances of real estate are by law required to be acknowledged,” 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 homestead. This statute is too plain to require any judicial construction to show that the homestead right of the wife must appear to have been expressly released by her in the body of the deed, as well as acknowledged to have been done in the certificate of the officer taking the acknowledgment. Such are the repeated decisions of our Supreme Court. In the case of Boyd v. Cudderback e.t al. 31 Ill. 113, Judge Walker says that the amendatory act of 1857 was adopted to protect the wife against the acts of the husband, that no act of his, until she did what the statute has required, should deprive her and the family of a home. Ho case exactly like the present is cited by counsel, nor have we discovered any, but if the release in the body of the deed be expressly limited to the husband alone, it would seem to be self-evident that the wife had not expressly released her homestead right in the deed, and acknowledged that she did so in the acknowledgment, and that these two things not concurring, she has not parted with her homestead right. The deed and acknowledgment are undoubtedly sufficient to release dower; and if the wife be excluded from the clause in the body of the deed as to releasing the homestead, then the execution was for the purpose of releasing dower; and under the maxim that “ the expression of one is the exclusion of another,” not for the purpose of releasing the homestead. Decree affirmed.