Bush v. Scott , 76 Ill. 524 ( 1875 )

Mr. Justice Beeese

delivered the opinion of the Court:

This was a bill in chancery, in the Edgar circuit court, the scope of which was to set aside a sale made by the sheriff of that county, of certain lands therein, on the allegation that the same were the homestead of complainant.

There was a demurrer to the bill and judgment thereon for the defendants, that the bill be dismissed. The record is brought here by writ of error, and this decree is assigned as error.

The allegation on which the claim to relief is based, is founded in a misconception of the true position appellant occupies. The statute is plain to the point that no homestead right can exist as against a claim for the purchase money of the land to which it is attached. Sec. 3 of the Homestead act expressly provides that no property shall be exempt fuom sale for a debt or liability incurred for the purchase or improvement thereof. Rev. Stat. 1874, p 497.

The foreclosure of the mortgage was accompanied by a decree for the amount of the mortgage money, and that became a debt due mortgagee which his executors could collect by execution. These proceedings were not in the nature of a proceeding to enforce a vendor’s lien. That exists independent of any contract and can be enforced only in equity.

We are referred, by plaintiff in error, to the case of Phelps v. Conover, 25 Ill. 309, as bearing on this case. We do not perceive the resemblance. Here was no sale of the note given for the purchase money which the mortgage was executed to secure, and given up to the maker and a new note taken. This proceeding is between the original parties, and that the note and mortgage were given to secure the purchase money, is not denied. There is no foundation for the claim of a homestead right.

The decree was right, and it must be affirmed.

Decree affirmed.