Brown v. Cozard

Citations

• 68 Ill. 178

Syllabus

<p>1. Chancery—marshalling assets. The principle of equity, that where one party has a lien on or interest in two funds for a debt, and another party has a lien on or interest in one only of the funds for another debt, the latter has a right in equity to compel the former to resort to the other fund, in the first instance, for satisfaction, is subject to two qualifications: that it shall not operate to the prejudice of the creditor entitled to the two funds, and that it works no injustice to the common debtor.</p> <p>2. Marshalling assets—to subject homestead to sale. Where a debtor gave a mortgage on a quarter section of land, in one forty acres of which was his homestead, the mortgage releasing the exemption, a judgment creditor of the mortgagor, having no release as to his judgment, sought by bill in equity to compel the mortgagee to resort first to the forty acres containing the homestead, for the satisfaction of the mortgage, so that the judgment, with the residue of the mortgage debt, might be satisfied out of the balance of the quarter section: Reid, that the relief could not be granted, as the effect of it would be to give the judgment creditor the benefit of the release made, not in his favor, by an order of the court, and would be in violation of the intent of the statute, that the homestead right should not be injuriously affected for debt, without the written assent of the debtor. •</p>