Black v. Lusk

Citations

• 69 Ill. 70

Syllabus

<p>1. Chancery practice—whether a decree pro confesso should be as to original bill, for default of answer to amended bill. Where the matters alleged in an amendment to a bill in chancery are wholly immaterial, there is no error in refusing to enter a decree pro confesso as to the original bill, which had been answered, upon taking the amended bill for confessed for want of an answer. The only error in such a case is in allowing a decree pro confesso as to the amendment.</p> <p>3. Contract. Where a party who had given a mortgage to a third party upon real estate, to secure the payment of a portion of the purchase money, and who had afterwards given two other mortgages without release of homestead, agreed with the holder of the two last mortgages, that if he would purchase the first mortgage and note therein secured, the subsequent. notes and mortgages should tack to the same, and the premises be sold to satisfy the whole by foreclosure, and the purchase was accordingly made, it was held, that the agreement did not constitute a contract, and could not. operate to release the mortgagor’s homestead exemption as to the two last mortgages.</p> <p>3. Homestead—can be released only according to the statute. Under the statute the homestead exemption can only be released in the mode therein provided.</p> <p>4. Same—-sale of excess or when it exceeds §1000 in value. Where the answer to a bill to foreclose a mortgage sets up the homestead exemption as a defense, if the bill and the proofs show that the premises are worth more than §1000, a decree may be entered for the sale of so much thereof as exceeds that value; but in the absence of any such averment and proof, or any averment denying the homestead right set up, no decree of sale can be had.</p> <p>5. The fact that property sought to be sold on execution or under a decree of court is a homestead, is a defense against the proceeding to st 11, and it is for the party desiring to sell to take the initiative, if he believes th