Wheeler v. Gage

C. B. Smith, J. This was a bill in chancery to foreclose two chattel mortgages on a dwelling house and milliner’s store built on leased ground. The cause was heard on bill, answer and replication, and the evidence taken in the Kankakee Circuit Court, and the court granted a decree of foreclosure according to the prayer of the bill. Appellant has sued out a writ of error, and asks to have the decree reversed for the errors assigned. The case is here under a certificate of the judge under Sec. 76 of the practice act of this State. The answer admits the making of the mortgage, but claims that the homestead was not released in the execution and acknowledgment of the mortgage, and claims a homestead in Hannah Wheeler, the wife of James Wheeler, who has died since making the mortgages. Whether the acknowledgments of the two chattel mortgages released the homestead is the only question presented to us by this record, and is the only question argued by counsel, except the question of jurisdiction of the court under the certificate of the judge. The chattel mortgages are in the usual form and both cover the same property, viz.: the frame two-story building used as a millinery store and dwelling, situated on the north part of lot 1, block 43, in Momence. The acknowledgment to the first mortgage is as follows: “ State of Illinois, 1 “Kankakee County, j s' I, M. O. Clark, a justice of the peace in and for the town of Ganeer. in and for said county, do hereby certify that this mortgage was duly acknowledged before me by the above named James Wheeler and Hannah Wheeler, the mortgagors therein named, and entered by me this 27th day of May, A. D. 1882, including the release and waiver of the right of homestead. “Witness my hand and seal. “M. O. Clabe:, “Justice of the Peace.” The acknowledgment to the second mortgage is in the following form, viz.: “ State of Illinois, 1 “ Kankakee County, j ss" I, M. O. Clark, a justice of the peace in the town of Ganeer in and for said county, do hereby certify that this mortgage was duly acknowledged before me by the above named James Wheeler and Hannah Wheeler, the mortgagors therein named, as their free act and deed, including the release and waiver of the right of homestead, and entered by me this 11th day of June, 1883. “ M. O. Claek, “Justice of the Peace.” In the body of both the chattel mortgages the right of homestead was expressly waived and released. It was conceded by appellee that appellant has a right of homestead in the premises described, unless it was properly released by the mortgagors, and he contends that the acknowledgment to both mortgages was sufficient under our conveyance and homestead acts to operate as a release of the homestead right. Appellant, on the contrary, insists that the acknowledgments were inoperative to release the homestead right. The court below was of opinion that the homestead was released, and ' so decreed, and ordered the property sold without setting off the homestead. In this we think the court erred. Sec. 1, Oh. 52, E. S., gives a householder a homestead and provides that “such homestead and all right and title therein shall be exempt * * * from the laws of conveyance, * * * except as hereinafter provided.” Sec. 4 provides that “no release, waiver or conveyance of the estate so exempted shall be valid unless the same is in writing, subscribed by said householder and his or her wife or husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged.” Sec. 25, Oil. 30, E. S., provides that “no judge or other officer shall take the acknowledgment of any person to any deed or instrument of writing, as aforesaid, unless the person offering to make such acknowledgment shall be personally known to him to be tlie real person who and in whose name such acknowledgment is proposed to he made, or shall be proved to be such by a credible witness, and the judge or officer taking such acknowledgment shall, in his certificate thereof, state that such person was personally known to him to be the person whoso name is subscribed to such deed hr writing, as having executed the same, or that he was proved to he such •by a credible witness (naming him).” Sec. 27, Cli. 30, gives the form of an acknowledgment. This form requires the officer to state in his certificate that the grantors were personally known to him; and further, that the grantors appeared before him in person on the day of the acknowledgment and that they acknowledged the instrument as their free and voluntary act for the uses and purposes there set forth. Sec. 28 of the same act provides that, in cases whore it is intended to release the homestead, then the certificate of acknowledgment shall contain a clause substantially as follows: Including the release and waiver of the right of homestead.” The foregoing are the several sections of the statute relating to the estate of homestead and the manner of its release so far as they relate to this controversy. It will be seen that both the body of the chattel mortgages as well as the certificates of the officer to both the mortgages, contain a release of the homestead, and in that respect no objection can be made to the certificate. But it will be seen that both certificates are fatally defective in other respects and wholly silent upon material matters required to he therein stated, by the 25th section of the statute above quoted. There is no statement in either certificate that James and Hannah Wheeler were known to the officer to bejhe same persons who signed the mortgage, or that tiiey were proven to be the same persons by a credible witness, nor that the Wheelers personally appeared before him on the day of the acknowledgment or on any other day. We regard these omissions in the certificate of the officer as fatal. The omitted provisions are clearly and explicitly required by the statute to be in the certificate to make it valid and operative for the purpose of releasing the homestead. This construction of the statute has been adopted in many decisions of our own Supreme Court. Boyd v. Cudderback, 31 Ill. 113; Smith v. Miller, 31 Ill. 157; Vanzant v. Vanzant, 23 Ill. 541; Best v. Cohlson, 89 Ill. 465; Warner v. Crosby, 89 Ill. 320. Many other cases might be cited in support of the same construction°given the statute, hut the foregoing are amply sufficient to show that the question seems to be settled and not open to further controversy. We fully agree with the construction given to the statute. We hold that there must be a strict compliance with both the substance and form of the statute in the mode of executing and acknowledging deeds and mortgages, for the conveyance of land, or any interest therein, in order to make the deed or mortgage effective to convey the homestead. We think this court has jurisdiction of this appeal under the certificate of the judge, and that the statute which provides that the court shall have no jurisdiction under the certificate of the judge when the title to real estate is involved, is not applicable to this case. The title is only incidentally involved. The object of the proceeding is to enforce payment of the mortgages and, upon failure to pay, asks that the real estate may be sold to compel payment. This does not involve the title in the sense of the statute. The statute only applies when the title is the main contention in the suit and is directly involved. The decree of the Circuit Court is reversed and cause remanded, with directions to proceed in harmony with the views expressed in this opinion. Reversed and remanded..