Mooers v. Dixon
Illinois Supreme Court
Mooers v. Dixon, 35 Ill. 208 (Ill. 1864)
Breese
Mooers v. Dixon
Opinion of the Court
delivered the opinion of the Court:
It is impossible to distinguish this case in principle from the case of Wing v. Chopper and wife, post, 256, or from the case of Hoskins v. Litchfield, therein referred to, reported in 31 Ill. 137. On the authority of these cases the sale will be set aside, and the master in chancery of Lee county directed to sell the premises under the homestead act. The decree of foreclosure will not be disturbed. See, also, Moore v. Titman, 33 Ill. 358.
The decree dismissing the complainants’ bill is reversed, and the cause remanded, with directions to the Circuit Court to set aside the sale and direct the master to sell the premises, in the mode pointed out by the homestead act.
Decree reversed.
Reference
- Full Case Name
- James M. Mooers et ux. v. Charlotte C. Dixon
- Cited By
- 9 cases
- Status
- Published
- Syllabus
- 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. 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.