Wing v. Cropper

Citations

• 35 Ill. 256

Syllabus

<p>1. Homestead—what are forced sales, under act of 1851. A sale by the decree of a court of equity in a suit to foreclose a mortgage, under an order to the master to make the sale, is a forced sale, as much so as if the sale were made under a fieri facias.</p> <p>2. Such a case is distinguishable from the cases of Smith v. Marc, and Ely v. Eastwood, in 26 111., where the sales were made under a power to sell, and not by the order or decree of any court.</p> <p>3. Same—what will operate as a release of the right. The mere execution of a mortgage upon a homestead did not operate, even before the amendatory act of 1857, ipso facto, as a waiver of the homestead right. The statute points out the mode by which the exemption can be released and waived, and unless that mode is pursued, the exemption is not lost.</p> <p>4. A suit was instituted to foreclose a mortgage executed in 1856, by a householder and his wife upon their homestead, there being no release or waiver, however, in the mortgage of the homestead right. A decree of foreclosure was entered pro confesso, a sale of the premises was ordered, and the master made the sale in pursuance of the decree, without reference to the homestead right. It was held that the omission to interpose the claim to the homestead as a defense to the bill to foreclose was of no importance, as it could be asserted afterwards in the appropriate mode. The right is conferred by statute, and can be divested only in the mode provided by the statute.</p> <p>5. In tills case there was nothing alleged in the bill about the homestead. Of course, then, taking the bill for confessed did not amount to a confession of any fact not alleged in it. By failing to answer, the defendants admitted only what was alleged in the bill.</p> <p>6. Same—of the time and manner of asserting the right. A party claiming the homestead right, may set it up in his answer to the bill to foreclose, or he may claim it when the master proceeds to execute the decree. It is th