Best v. Gholson

Citations

• 89 Ill. 465

Syllabus

<p>1. Homestead—release must appear in certificate of acknowledgment. Under the act relating to conveyances, in force July 1, 1872, no deed shall be construed as releasing or waiving the right of homestead unless it shall contain a clause to that effect, and the certificate of acknowledgment shall recite “including the release or waiver of the right of homestead,” or contain other words expressly showing an intention to make such release or waiver. Without such words in the certificate of acknowledgment as to both husband and wife, the homestead will not be released.</p> <p>2. When a deed of trust executed by husband and wife in 1873, contained a clause expressly waiving and releasing all right and benefit of homestead in the premises, and the certificate of acknowledgment as to the husband made no mention of the release and waiver of the homestead, though it. did fully as to the wife, it was held insufficient to release the homestead on account of the defect in the certificate as to the husband.</p> <p>3. Courts have no rightful authority, by mere construction, to aid the defective execution of a power given or created exclusively by statute, nor to dispense with those formalities which the legislature has seen fit to provide to secure its due execution. In order to waive or release the homestead right secured to both husband and wife, the mode prescribed by statute must be strictly complied with, and no subtle construction ought to be adopted to defeat the policy of the law.</p> <p>4. Same—as to nature of the indebtedness. Where the defendant in an action of forcible detainer, brought by the purchaser under a deed of trust, showed that he was the head of a family and residing upon the premises when the deed of trust was executed by him and his wife, and the continued occupancy as such ever since, and the plaintiff, in rebuttal, showed that a small portion of the money mentioned in the notes secured by the trust deed was used to take up a previous incumbrance on th