Johnston v. Dunavan

Wall, P. J. On the eighteenth day of January, 187?$ Mary A. Dunavan and Jesse J, Dunavan, her husband, executed and delivered to Joseph P. Johnston a deed of mortgage upon certain real estate, owned in fee hy said Mary, of less value than $1,000, then occupied hy herself and family as a homestead, to secure the said Johnston in the sum of $400, which he then loaned to the said Jesse J. Dunavan. The instrument contained the usual release of homestead, but the certificate of acknowledgment fails to state that the homestead was released by the husband, though it is sufficient iu that respect as to the wife. Upon a bill filed to foreclose the mortgage it is sought to correct the certificate, so that it shall conform to the statute and thereby release the right of homestead. It was alleged that when the mortgage was given it was understood and agreed that all such rights should be waived, so that the mortgage should he a valid and effective lien as to the entire estate, hut that through the failure of the justice to make the proper certificate the intention of the parties was not accomplished. There is some evidence, and we may say it is satisfactory, that when the loan was negotiated it was understood on both sides that the security was to be perfect, and that the lion thereby created was to he paramount, though the release of the right of homestead was not definitely or specifically discussed. Nor is it clear that the justice, when he took the acknowledgment, was informed hy the mortgagors that they intended to make such release. The .justice in his testimony states, that wffiile he can not recall the conversation on that occasion he is confident that he received such an acknowledgment as was necessary to make the instrument effective for all that it set forth; but it is apparent that he has but a general recollection of the matter, and the mortgagors deny that they made any acknowledgment whatever as to the homestead. There is great uncertainty as to what is the truth upon this point. The circuit court denied the specific relief sought, and this presents the only question for our decision. The estate of homestead is created hy the statute for the protection of the family of the debtor. It is a part of the legislative policy of the State, and, by an unbroken current of judicial decisions, the rule is firmly established that the right thus created can be relinquished only in the mode pointed out by the statute or by abandonment. Among the many eases decided, the following may be cited: Hoskins v. Litchfield, 31 Ill. 137; Mitchell v. Caverly, 58 Ill. 428; Trustees, etc., v. Hovey, 94 Ill. 394; McGee v. McGee, 91 Ill. 548; McMahill v. McMahill, 105 Ill. 601. In the two last named cases it was held that the estate could not be barred or waived by an ante-nuptial agreement. So also it has been held with regard to personal property exempt from execution, that the exemption can not be waived by an executory agreement. Recht v. Kelly, 82 Ill. 147. Similar in principle is the rule that the right of dower can be released only in the mode provided by law, and that a court of equity has no power to correct a defective acknowledgment or certificate by the officer. Russell v. Rumsey, 35 Ill. 362. We are of opinion there is no power in a court of equity to make the correction here prayed for. The mortgagee is presumed to Imow what is necessary for his security, and in the present instance he testifies that he looked the mortgage over and found it in proper form, and then gave a check for the money, but did not read the acknowledgment as he presumed it was all right. A proper degree of caution on his part would have saved him from loss, and were there no other reason, his negligence would bar him of relief in a court of equity. Russell v. Rumsey, 35 Ill. 371. The decree of the circuit court is affirmed.