Gaither v. Wilson

Hr. Presiding Justice Green delivered the opinion oe the Court. Two errors are assigned on the record: “ 1st. Said Circuit Court erred in directing any part of the proceeds of said lots, to be applied on the mortgage of said appellee Wilson.” “ 2d. Said court erred in not requiring said tract of land to be first exhausted, before resorting to said lots.” The evidence in the record satisfies us that the trial court was justified in finding that at the time the Gaithers gave Wilson the mortgage, they did not reside on the lots in question, and had no homestead right therein. The note secured by the mortgage was given for the full purchase price of said lots, and the claim by appellants that Wilson agreed to release said lots from the mortgage, upon the payment of • claims against the estate of Gaither’s mother, amounting to $200, which were liens upon said land, was not proven. In. short the court properly found from the evidence, that Wilson’s mortgage was a prior subsisting lien upon the land and lots described therein. If any of the parties had a right to complain of the decree it was Wilson, who is limited to a $500 lien on the house and lots, on which he had a lien by mortgage, for the entire purchase money thereof. As to the mortgage to Fogle Brothers, it appears from the evidence in the record that the mortgagees had no notice of the mortgage to the Citizens Building Association until after the latter was acknowledged and recorded, and their lien, which was upon the land only, was properly held to be second to that of the Wilson mortgage, and superior to that of the Citizens Building Association. The contention that the question of homestead is properly before us under the pleadings, we consider untenable. Ho allegation in the answers of the Gaithers, and Citizens Building Association, or in their cross-bill, properly sets up a homestead right of the Gaithers, nor does the paper signed by Mrs. Gaither, called a cross-bill, which contains no prayer for relief, sufficiently allege a homestead right. To avail themselves of the benefit of the exemption law, it was incumbent upon them to allege in the answer, or cross-bill, such facts as certainly brought them within the protection of the law. We can not indulge in presumptions not necessarily arising from the facts averred. The facts that the lots were occupied by Gaither as the head of a family residing with the same, and were his homestead -when the mortgage was given, are not averred. Symonds v. Lappin, 82 Ill. 213; Finlon v. Clark, 118 Ill. 32. Aside from this, as against the Wilson mortgage, the Gaithers had no homestead in said lots or land, and the building association’s lien was subordinate to Wilson’s. Hence it was not error to decree that the proceeds of the sale of the mortgaged lots, as well as the proceeds of the sale of the mortgaged lands, should be applied to the payment of the debt to secure which all of said property was pledged. Hor is the second error well assigned. Ho good reason is given why the decree should require the proceeds of the sale of land to be exhausted before resorting to said lots. Gaither had no homestead right, as against "Wilson or the building association, in any of the mortgaged property, and the mortgage debt secured thereby, was of greater amount than the value of the entire property. The court properly ordered that a distinct, separate sale of the land and of the lots be made, and that said tracts be offered separately, as the law provides, and ordered the payment of the several debts in accordance with the equitable rights of the respective parties, except as to Wilson, as before stated, but he makes no complaint, and assigns no cross-errors. Ho reason for reversal appears, and the decree is affirmed.