delivered the opinion of the Court:
The mortgage sought to be foreclosed by the bill in this case was made by Thomas H. Harris, who died before the suit was commenced. The premises embraced in the mortgage were the homestead of the mortgagor, and since his death the widow and her family have continued to reside upon the same. The wife of the mortgagor did not join with her husband in the execution of the mortgage, and it is admitted she is entitled to -both dower and homestead in the mortgaged premises. Only a part of the mortgage indebtedness was due when the bill was filed. In her answer the widow, Margaret Harris, admitted the death of her husband, Thomas H. Harris, but disclaimed any knowledge of the making and delivering of the notes and mortgage,' and by appropriate allegations set up her homestead and dower in the premises, and asked that her rights therein be protected. Nothing contained in the other answers is important to be stated. The decree saved to the widow her dower and homestead in the premises, and directed a foreclosure of the mortgage for the amount found due, and provided for the sale of the residue of the mortgaged premises, after the assignment of homestead, as provided in the statute, subject to the dower of the widow and to the unmatured portion of the mortgage indebtedness. This decree was afterwards executed by the master in chancery, who caused homestead to be assigned to the widow, as directed in the decree and by the statute, and then sold the residue of the mortgaged property, subject to the widow’s dower and the unmatured mortgage indebtedness, as he was directed by the decree to do, and at such sale complainant became the purchaser, to whom was issued the usual certificate of purchase.
Numerous errors have been assigned, but in the view taken of the case it will not be necessary to notice all of them. It is said the decree is erroneous as setting off homestead and dower to the widow, thus granting affirmative relief to her on her answer. The decree does not purport to assign dower to the widow. It only saves her dower, and in this respect there was no error. Concerning the homestead, it is admitted the widow was entitled to a homestead in the premises, and, under the statute, there could be no sale until it should be assigned to her as the statute provides. The" decree does not grant affirmative relief either as to dower or homestead. As has been seen, the decree did not provide for the assignment of dower, and as to assigning the homestead, that was done for the benefit of complainant, that he might have a sale of the residue of the premises, and the decree in this behalf is clearly warranted by the prayer of the bill for “such other and further relief in the premises as equity may require. ”
It is also said the decree is erroneous as fixing the value of the homestead of the widow in the mortgaged lands at $1000, and directing the master in chancery to pay her that amount in case the homestead could not be assigned and a sale of the premises should thereafter be made. The statute fixes the value of the homestead, and the decree simply follows it. If it shall be conceded it was error to direct the master to pay her that amount.in case the homestead could not be assigned and the premises should have to be sold, the decree in that respect did complainant no harm, as the homestead was in fact assigned under the statute, and no money was paid to the widow in lieu of homestead. It is not a matter of which complainant will now be heard to complain.
The point is made that part of the decree directing the sale of the property subject to the lien of the mortgage for the unmatured notes, was contrary to law. It would seem to be a sufficient answer to the position taken, that the decree in this respect is most favorable to complainant, and can work no hardship to him in any event. Defendants might have objected to the decree for this reason, but as no possible injury can come to complainant on that account, he will not be permitted to assign it for error. As has been seen, at the master’s sale he purchased the residue of the property after the assignment of homestead had been made. In case the property should be redeemed by any of defendants, it would still be subject to the unpaid mortgage indebtedness, and in that regard it is most favorable to complainant; but if not redeemed, then he would own the property he bought, subject to the dower of the widow, and that is all he could get in any event. In either view, there is no just ground for complaint on that score.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.