Hewitt v. Templeton

Citations

• 48 Ill. 367

Syllabus

<p>1. Homestead exemption—homestead right—how lost by acts in pais. March 14th, 1859, T and wife mortgaged certain premises to S, without releasing the homestead, which was assigned by him to D, March 26th, 1861. Oct. 24th, 1861, T and wife quitclaimed the premises to their two sons, but without relinquish-. ment of the homestead, who conveyed the same to A in November following. Dec. 20th, 1861, by virtue of a power of sale contained in the mortgage, D sold the premises to H, to whom he executed a deed; and on Feb. 20th, 1862, T and wife executed a deed to H, conveying the homestead right, reserving possession until April 1st following. March 1st, 1862, T and wife abandoned the premises, and A took possession under his deed from the sons. Held, in a suit by the grantee of H against A, to quiet title—■</p> <p>1. That by the deed of T and wife to their two sons, only the equity of redemption passed, which was the sole estate acquired by A, of which he became divested by the sale under the mortgage.</p> <p>2. That had T remained in the occupancy of the premises beyond April 1st, he could have been evicted therefrom, by H, the owner of the fee, to whom the homestead right had been relinquished.</p> <p>3. And that, notwithstanding such release had never been executed, the act of T, in abandoning the premises, annihilated the homestead right, and the immediate right of possession at once attached to H, the owner of the fee.</p> <p>2. Same. A grantee by a deed which fails to release the homestead right, becomes entitled to the immediate right of possession, upon abandonment by the grantor, as by such act the homestead right is annihilated, and is not such an estate in the premises, which can be transferred as against the owner of the fee.-</p> <p>3. Mortgage—sale mortgage—judgment obtained on the notes—-prior to sale. And in súch case, it is no objection that judgment had been obtained on the notes executed by T, to secure which the mortgage was given, prior to the sale u