Goltra v. Green

Citations

• 98 Ill. 317
• 1881 Ill. LEXIS 259

Syllabus

<p>1. Chancery—, ill to foreclose—sufficiency of, as to release of homestead. Where a bill to fore dose a mortgage alleges that the mortgagor and his wife, being seized in fee simple of the premises, conveyed them to complainant in fee simple, subject to a condition of defeasance, etc., this will be equivalent to an averment that the homestead of the mortgagors was released, and a decree finding the allegations of the bill to be true amounts to a finding that the mortgagors released their homestead right.</p> <p>2. Homestead—may be set up in answer when bill is silent. Although a bill to foreclose a mortgage is silent in regard to the homestead of the mortgagors, or the release of the same, if the answer sets up a homestead right and a failure to release the same by the mortgage, this will authorize the court to consider and determine evidence bearing upon that question, and if the court finds for the complainant and orders a sale of all the mortgagors’ interest in the premises, and bars the mortgagors from all equity of redemption, and interest in the premises, this will be an adjudication against the defence of homestead, and will be conclusive on the parties until reversed in some direct proceeding.</p> <p>3. Former adjudication—of homestead right, on bill to foreclose, is conclusive in all collateral proceedings. On a bill to foreclose a mortgage, in which it was alleged that the mortgagors conveyed the premises, in fee simple, to the complainant, subject to a condition of defeasance, the defendants answered setting up a homestead in the premises at the time of the execution of the mortgage, and its continuance, and that it had never been released, etc. The court, in its decree, found for complainant, and ordered a sale of all the defendants’ interest in the land, and barred their equity of redemption as to the same: Meld, that the decree was conclusive against the right of the defendants to a homestead in the mortgaged premises, until reversed, and precluded th