Eyster v. Hatheway

Citations

• 50 Ill. 521

Syllabus

<p>1. Parties—in chancery. Where a mortgage was executed by husband and wife, purporting to release, on the part of both, the right to a homestead in the mortgaged premises, and it is sought by bill in chancery to avoid such release, in the right of the wife, on the ground that the purport of the instrument in that regard was not made known to her at the time she executed and acknowledged the same, and that she was ignorant of the fact that thereby she was releasing all her right to homestead in such premises, the wife should join in the bill as a party complainant—it cannot be filed by the husband alone.</p> <p>2. Certificate' of acknowledgment—-for what it may be questioned, and in what mode. A certificate of acknowledgment to a deed may be impeached for fraud, as, where a husband and wife joined in the execution of a mortgage, and there was fraud, duress or undue influence of the husband in procuring the release of the wife of her homestead right, the certificate of acknowledgment it seems may be impeached in that regard.* </p> <p>3. This may be done upon bill filed for that purpose by husband and wife, or, in a suit to foreclose the mortgage, it may perhaps be set up as a defense.</p> <p>4. Homestead—purchase money. The statute declaring that the homestead right shall not be claimed against a debt due for the purchase money of the premises, has reference to a debt created in the purchase of the land, and does not embrace a debt created by borrowing money from a third person, which may have been applied by the borrower in the purchase of the land—that provision of the statute applies only to parties who stand in the relation of vendor and purchaser, or those representing them.</p>