The appellants assign for error the allowance of the motion, founded on certain affidavits made by Marckle, for a writ of possession of the premises bought by him under the mortgage sale, and in not vacating the decree of foreclosure and sale on their motion and affidavits.
The wife, now widow of Miller, one of the appellants, was not a party to the bill to foreclose, nor has she, at any time, released her right of homestead exemption, in the mode prescribed by the statute, according to the construction put by this court on that statute. In Kitchell v. Burgwin and Wife, 21 Ill. 45, this court said, a formal release or waiver of the statute must be executed. It must appear that the privileges and advantages of the act were in the contemplation of the parties executing the deed, and that they were expressly released or waived in the mode pointed out in the statute. To the same effect is Vansant v. Vansant, 23 Ill. 541.
In the case of Vansant we said, when the householder dies, the exemption continues after his death for the benefit of the widow and family, some or one of them continuing to occupy such homestead until the youngest child shall become twenty-one years of age, and until the death of such widow. The appellee insists, that at the time of the decree, Miller did not insist upon his homestead right, and that since his death, his widow has released all her interest to the appellant. That release is a general one, and however it may affect her, cannot affect the interest of her children as secured by the Homestead Act.
But it is insisted, that one of the notes for which one of the mortgages was executed, was given to secure the purchase money of the land, and under the second section of the act the land cannot be exempt from sale.
This would appear so from the affidavit of Wells, and the circumstances of the case corroborate his statement, but it is ex parte altogether, and a vital question in this case. It is decisive of the claim set up by the widow and children. It is true the parties have not had a full opportunity of contesting that important fact, nor do they ask to do so, and we can, therefore, but find as the court below has found, that the first mortgage was given “ for a debt or liability incurred for the purchase of the land mortgaged and sold under the decree,” and that appellee must be allowed the benefit of his motion. The decree upon the mortgage given to secure the payment of one thousand dollars, and alleged to have been given to defraud creditors, was reversed by this court in the case of Miller v. Marckle, 21 Ill. 152, but that judgment is not insisted on here, nor is there any appeal from the original decree. The judgment of the Circuit Court on the motion is affirmed.
Judgment affirmed.