Mooers v. Dixon

Citations

• 35 Ill. 208

Syllabus

<p>1. Homestead eight — of (he time and manner in which, it may he asserted. Where a householder and his wife join in the execution of a mortgage upon premises in which they have a homestead right, but which was not released in the mortgage, the mere omission on their part to interpose their claim to that right as a defense to a bill to foreclose the mortgage, will not operate as a waiver of such right.</p> <p>2. So where such a mortgage was given upon premises of value exceeding one thousand dollars; after a decree of foreclosure thereon, taken pro confesso; a sale under the decree without reference to the homestead right, and a confirmation of the sale; the lapse of fifteen months, and a conveyance by the master to the purchaser, and confirmation thereof; and the award of a writ of possession to the purchaser; it is held, that the mortgagors may, by original bill, assert their right of homestead, and, while the decree of foreclosure will not be disturbed, the sale and all subsequent proceedings will be set aside, and the master directed to sell the premises in the mode pointed out in the homestead act.</p>