McDonald v. Crandall

Citations

• 43 Ill. 231

Syllabus

<p>1. DEED-h es~e~d-Te~e~se of-ft~ effeet. Where the owner of land, residing upon it, since the passage of the ainendatory homestead law of 1857, with his wife, executes a deed of conveyance therefor, but they fail to relin~uishthehomeeteadexemption; ?~eZd, that such a conveyance operated to pass the fee, but suspends its operation until the grantor abandons the premises, or surrenders the possession to the grantee.</p> <p>3. Where a party conveys the homestead, and the exemption is not relinquished in the mode prescribed by the statute, the grantee does not acquire such a title as would authorize a recovery in ejectment, or to defend against his grantor still remaining in possession, in an action for trespass to the premises.</p> <p>3. Homestead—judgment lien. It is the law of this court, that the homestead, when occupied by the debtor, as such, is not subject to the lien of a judgment, and its sale by the debtor and a surrender of the possession to the purchaser, who was a junior judgment creditor, is valid against a prior judgment.</p> <p>4. Same—excess above the exemption. Where the homestead exceeds §1,000 in value, a judgment, mortgage, or deed of trust becomes a lien and may be enforced against the overplus; and the same is true of the excess, where there is a conveyance without a release of the exemption, as the grantee may enforce his rights to the surplus.</p> <p>5. Same—homestead exemption not an estate. The homestead act has not created a new estate, but simply an exemption, and where the holder of the homestead conveys, without relinquishing the exemption, he transfers the fee, but the operation of the deed is suspended until the premises are abandoned or possession is surrendered. The act will not bear the construction, that an estate is created which may be transferred and held by others than those specified in the statute. Such was not the legislative intention.</p> <p>6. Same—sale —possession. Where a sale by a trustee, and the trust deed . under wh