Austin v. Underwood

Citations

• 37 Ill. 438

Syllabus

<p>1. Homestead exemption—what constitutes purchase money. Where a party, owning and residing upon a homestead, purchases and obtains a conveyance of land adjoining thereto, to be used as a part of the same, and procures the purchase money of the land thus added to the homestead to be paid by a third person, as a loan to the purchaser, the money thus paid by the lender will be regarded as purchase money of the land thereby acquired, as against the homestead claim of the purchaser for whom it was paid.</p> <p>2. Such a case is distinguishable from one where money is borrowed to pay a preexisting debt which was created in the purchase of the homestead-</p> <p>3. It is the common understanding of the term purchase money, that it means money paid for the land, or the debt created by the purchase.</p> <p>4. Same—effect of uniting in the security for the purchase money, a debt of a different character. Although other indebtedness, as well as purchase money, may be secured by a deed of trust upon a homestead, in which there is no release of the homestead right, yet if the mortgagor omits to pay or offer lo pay that portion which is purchase money, and a sale is had under the deed of trust in default thereof, the title will pass to the purchaser, and he may recover the premises in ejectment.</p> <p>5. Chan be of the form of security—its effect. A change in the form of the security given for the purchase money, as from a mortgage to a deed of trust, will not change the character of the debt; the consideration of the mortgage being purchase money, it would so continue under the deed of trust.</p>