Ely v. Eastwood

The statute says, the homestead “ shall be exempt from levy and forced sale, under any process or order from any court of law or equity in this State.” This sale was made by a trustee under a trust deed, and was not made under a levy under any process or order of any court of any kind, and we cannot hold it to be within the law, without altering the statute itself. There may be as much propriety and necessity for exempting the homestead from sale for the payment of debts under a trust deed, as from sale under legal process, and probably had the legislature thought of this case, they would have provided for it in the law. But they did not do so, and we have no authority to do it for them. It is our place to administer the law as they made it, and we must do it without evasion. This deed having been executed before the passage of the law of 1857, is not affected by it.

The decree is reversed, and the bill dismissed.

Decree reversed.