Mr. Justice Scholeield
delivered the opinion of the Court:
Preliminary to a consideration of the main question arising on this record, it is necessary to notice an objection urged by appellees’ counsel, to the pleadings. It is insisted Eldridge does not, in his answer, set up such facts as clearly show that the Woods had a homestead right in the property covered by the mortgages, when the mortgage to Axtel wás executed. Under the pleadings, this was not made a question on the trial below. Appellees, by their bill as amended, expressly allege that the property was occupied by “Joseph Woods, and his wife, Isabel L. Woods, and his family, as a homestead,” when the mortgage to Axtel was executed, and thereafter until the first of March, 1875. Instead of presenting an issue whether the homestead right existed as against the rights of the mortgagee, it is, in general terms, admitted that such right did exist, and the bill seeks to avoid its effect by the allegation that on the first day of March, 1875, the Woods abandoned their homestead, and by the act of abandonment the property became subject to the Axtel mortgage. The answer admits the existence of the homestead right, but puts in issue only the fact and effect of the abandonment alleged. Upon this issue the cause was submitted and evidence heard and the decree rendered.
It does not lie in the power of appellees to now abandon the issue they tendered, and urge that the facts alleged were not specific enough to present the issue. When they undertook to anticipate the defense by alleging a state of facts designed to show its invalidity, they relieved their adversaries from specifically setting up their defense, and authorized them to accept the issue presented, and limit their allegations and proofs to that issue. Hall et al. v. Fullerton, 69 Ill. 451; Williams v. Rhodes et al. 81 id. 571.
The mortgage to Axtel was executed by Joseph Woods, on the 8th of September, 1873. It was not signed or acknowledged by Isabel L. Woods, his wife, nor did it purport to convey the estate of homestead, nor did the certificate of acknowledgment purport that such estate was released or waived. The mortgages to appellant, Eldridge, were executed—the first on the 8th of October, 1874, and the second on the 24th of February, 1875, and both purport to convey all right of homestead, are signed by Joseph Woods and Isabel L. Woods, his wife, and in the certificates of acknowledgment there are proper clauses showing that the right of homestead is relinquished. The abandonment of the premises, alleged and proved, was not until the 1st of March, 1875,— some days after the execution of the last mortgage.
The question, therefore, is, are appellant’s mortgages junior and subordinate to the Axtel mortgage in all respects, and without regard to the value of the property mortgaged, as decreed by the court below.
The statute in relation to homestead exemptions, in force prior to the act on that subject which took effect on the 1st of July, 1873, provided only that there should “be exempt from, levy and forced sale,” etc., the lot of ground, etc., occupied as a homestead, to the value of $1000, and that “no release or waiver of such exemption” should be valid, except in the mode therein prescribed. Gross' Statutes of 1869, p. ■ 327. It was held that this did not create a new estate, but simply an exemption; and where the holder of the homestead conveyed without relinquishing the exemption, he transferred the fee, but the operation of the deed was suspended until the premises were abandoned or possession was surrendered. McDonald v. Crandall, 43 Ill. 231; Coe et al. v. Smith, 47 id. 225; Hewitt v. Templeton, 48 id. 367; Hartwell et al. v. McDonald, 69 id. 293. And, also, that the exemption did not affect the rights of heirs or devisees. Turner v. Bennett, 70 Ill. 263; Eggleston v. Eggleston et al. 72 id. 24; Fight v. Holt, 80 id. 84; Sontag v. Schmisseur et al. 76 id. 541.
The phraseology of the act in force July 1, 1873, leaves no room for doubt that the General Assembly designed to change the law in both these respects. To meet the objection that the former acts created no new estate, it expressly declares that “ every householder,'' etc., shall be entitled to an estate of homestead to the extent in value of $1000,—thus creating a new estate; and, to meet the objection that the former exemption did not affect the rights of heirs and devisees, it declares that such homestead (i. e., the estate of homestead to the extent in value of $1000,) shall not only be exempt from attachment, judgment, levy or execution, sale for the payment of debts, or other purposes, but that it shall also be exempt from the laws of conveyance, descent and devise, except as therein provided. Eev. Stat. 1874, p. 497, § 1. So, also, in the fourth section, in providing the manner of release, waiver or conveyance, instead of following the language of the former acts, which use the word “ exemption,” only, in describing the interest of the householder, the language is, “no release, waiver or conveyance of the estate shall be valid, unless,” etc. And in the sixth section it is enacted: “When a homestead is conveyed by the owner thereof, such conveyance shall not subject the premises to any lien or incumbrance to which it would not have been subject in the hands of such owner; and the proceeds thereof, to the extent of the amount of $1000, shall be exempt from execution or other process for one year after the receipt thereof by the person entitled to the exemption, and, if reinvested in a homestead, the same shall be entitled to the same exemption as the original homestead.”
It would be difficult to employ language more clearly expressing that the householder is now invested with an estate (one before unknown to the law) of homestead, to the extent in value of $1000, which can only be incumbered or aliened in the mode prescribed by the statute. Where the property in Avhich this estate exists exceeds in value $1000, the excess is plainly unaffected by the estate—that is to say, the excess 'is liable to the same lien of judgment, attachment, etc., and to be aliened in the same manner that other real property of the householder is. Where, howe\rer, the property does not exceed in value $1000, the estate embraces the entire title and interest of the householder therein, leaving no separate interest in him to which liens can attach or which he can alien, distinct from the estate of homestead. To ascertain whether, in a given case, the householder has an interest in the property he occupies as a homestead, beyond and distinct from his estate of homestead, it is only necessary to keep in mind that the estate of homestead is limited by no specific degree of interest or character of title in the particular property, but is measured and defined entirely by the value of the interest and title Avhich the householder actually has,—in other words, it is value and not quantity or extent of interest that controls. The $1000 in value belongs to the householder, free from all claims of creditors and others. He may, to the extent of that, alien the property in Avhich the interest exists, Avithout regard to his creditors, but can only do so by observing the requirements of the statute; and, whatever he may own of value in the property, beyond that amount, is liable to be sold by creditors and aliened by the householder, the same as any other property in Avhich there is no claim on account of homestead.
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Mr. Justice Scholeield
delivered the opinion of the Court:
Preliminary to a consideration of the main question arising on this record, it is necessary to notice an objection urged by appellees’ counsel, to the pleadings. It is insisted Eldridge does not, in his answer, set up such facts as clearly show that the Woods had a homestead right in the property covered by the mortgages, when the mortgage to Axtel wás executed. Under the pleadings, this was not made a question on the trial below. Appellees, by their bill as amended, expressly allege that the property was occupied by “Joseph Woods, and his wife, Isabel L. Woods, and his family, as a homestead,” when the mortgage to Axtel was executed, and thereafter until the first of March, 1875. Instead of presenting an issue whether the homestead right existed as against the rights of the mortgagee, it is, in general terms, admitted that such right did exist, and the bill seeks to avoid its effect by the allegation that on the first day of March, 1875, the Woods abandoned their homestead, and by the act of abandonment the property became subject to the Axtel mortgage. The answer admits the existence of the homestead right, but puts in issue only the fact and effect of the abandonment alleged. Upon this issue the cause was submitted and evidence heard and the decree rendered.
It does not lie in the power of appellees to now abandon the issue they tendered, and urge that the facts alleged were not specific enough to present the issue. When they undertook to anticipate the defense by alleging a state of facts designed to show its invalidity, they relieved their adversaries from specifically setting up their defense, and authorized them to accept the issue presented, and limit their allegations and proofs to that issue. Hall et al. v. Fullerton, 69 Ill. 451; Williams v. Rhodes et al. 81 id. 571.
The mortgage to Axtel was executed by Joseph Woods, on the 8th of September, 1873. It was not signed or acknowledged by Isabel L. Woods, his wife, nor did it purport to convey the estate of homestead, nor did the certificate of acknowledgment purport that such estate was released or waived. The mortgages to appellant, Eldridge, were executed—the first on the 8th of October, 1874, and the second on the 24th of February, 1875, and both purport to convey all right of homestead, are signed by Joseph Woods and Isabel L. Woods, his wife, and in the certificates of acknowledgment there are proper clauses showing that the right of homestead is relinquished. The abandonment of the premises, alleged and proved, was not until the 1st of March, 1875,— some days after the execution of the last mortgage.
The question, therefore, is, are appellant’s mortgages junior and subordinate to the Axtel mortgage in all respects, and without regard to the value of the property mortgaged, as decreed by the court below.
The statute in relation to homestead exemptions, in force prior to the act on that subject which took effect on the 1st of July, 1873, provided only that there should “be exempt from, levy and forced sale,” etc., the lot of ground, etc., occupied as a homestead, to the value of $1000, and that “no release or waiver of such exemption” should be valid, except in the mode therein prescribed. Gross' Statutes of 1869, p. ■ 327. It was held that this did not create a new estate, but simply an exemption; and where the holder of the homestead conveyed without relinquishing the exemption, he transferred the fee, but the operation of the deed was suspended until the premises were abandoned or possession was surrendered. McDonald v. Crandall, 43 Ill. 231; Coe et al. v. Smith, 47 id. 225; Hewitt v. Templeton, 48 id. 367; Hartwell et al. v. McDonald, 69 id. 293. And, also, that the exemption did not affect the rights of heirs or devisees. Turner v. Bennett, 70 Ill. 263; Eggleston v. Eggleston et al. 72 id. 24; Fight v. Holt, 80 id. 84; Sontag v. Schmisseur et al. 76 id. 541.
The phraseology of the act in force July 1, 1873, leaves no room for doubt that the General Assembly designed to change the law in both these respects. To meet the objection that the former acts created no new estate, it expressly declares that “ every householder,'' etc., shall be entitled to an estate of homestead to the extent in value of $1000,—thus creating a new estate; and, to meet the objection that the former exemption did not affect the rights of heirs and devisees, it declares that such homestead (i. e., the estate of homestead to the extent in value of $1000,) shall not only be exempt from attachment, judgment, levy or execution, sale for the payment of debts, or other purposes, but that it shall also be exempt from the laws of conveyance, descent and devise, except as therein provided. Eev. Stat. 1874, p. 497, § 1. So, also, in the fourth section, in providing the manner of release, waiver or conveyance, instead of following the language of the former acts, which use the word “ exemption,” only, in describing the interest of the householder, the language is, “no release, waiver or conveyance of the estate shall be valid, unless,” etc. And in the sixth section it is enacted: “When a homestead is conveyed by the owner thereof, such conveyance shall not subject the premises to any lien or incumbrance to which it would not have been subject in the hands of such owner; and the proceeds thereof, to the extent of the amount of $1000, shall be exempt from execution or other process for one year after the receipt thereof by the person entitled to the exemption, and, if reinvested in a homestead, the same shall be entitled to the same exemption as the original homestead.”
It would be difficult to employ language more clearly expressing that the householder is now invested with an estate (one before unknown to the law) of homestead, to the extent in value of $1000, which can only be incumbered or aliened in the mode prescribed by the statute. Where the property in Avhich this estate exists exceeds in value $1000, the excess is plainly unaffected by the estate—that is to say, the excess 'is liable to the same lien of judgment, attachment, etc., and to be aliened in the same manner that other real property of the householder is. Where, howe\rer, the property does not exceed in value $1000, the estate embraces the entire title and interest of the householder therein, leaving no separate interest in him to which liens can attach or which he can alien, distinct from the estate of homestead. To ascertain whether, in a given case, the householder has an interest in the property he occupies as a homestead, beyond and distinct from his estate of homestead, it is only necessary to keep in mind that the estate of homestead is limited by no specific degree of interest or character of title in the particular property, but is measured and defined entirely by the value of the interest and title Avhich the householder actually has,—in other words, it is value and not quantity or extent of interest that controls. The $1000 in value belongs to the householder, free from all claims of creditors and others. He may, to the extent of that, alien the property in Avhich the interest exists, Avithout regard to his creditors, but can only do so by observing the requirements of the statute; and, whatever he may own of value in the property, beyond that amount, is liable to be sold by creditors and aliened by the householder, the same as any other property in Avhich there is no claim on account of homestead.
But counsel insists, that if a mortgage or deed, without a release or waiver of the estate of homestead, can not, in any manner, affect the title to the property purporting to be conveyed, it is impossible that title can be transferred by an abandonment of the premises; and yet he insists the statute expressly provides that it may be.so transferred.
This position is assumed without due attention to the language of the statute. It is nowhere provided that mere abandonment shall have the effect of vesting the estate in the grantee of a prior insufficient deed. The estate is upon condition, and, of course, may be extinguished by the failure of the condition. The condition is, that the homestead shall not be voluntarily surrendered or abandoned. Voluntary abandonment, not pursuant to a conveyance, would extinguish the estate (not pass the title), leaving the property to be thereafter dealt with as other property; but abandoning or surrendering possession pursuant to the conveyance of the property, is not an abandonment of the estate of homestead, but is, by virtue of the statute, an appropriate mode of transferring that estate. In such case, the two acts—the execution of the conveyance and the abandoning or surrendering of possession pursuant to the conveyance—are, in legal contemplation, one transaction; and the conveyance becomes effective only from and after the abandoning or surrendering of possession pursuant to its terms.
It is sufficient that the language of the statute comprehends mortgages, without attempting to analyze the motives which may have controlled in the enactment of the statute. Whether this was wise or unwise, or entirely consistent with what we might conceive to be the general policy of the statute, could only be important upon the assumption that a reasonable construction leaves it doubtful whether the language employed is intended to include or exclude such instruments. No such doubt occurs to our minds. An exception as to the exemption is made in favor of sales for non-payment of taxes or assessments, and for a debt or liability incurred for the purchase or improvement of the premises, thus, according to a familiar rule of construction, excluding, by necessary implication, any other exemption; and the language expressly excludes every other known mode of incumbering and conveying the property. A mortgage is defined to be “the conveyance of an estate, by way of pledge for the security of debt, and to become void on payment of it. The legal ownership is vested in the creditor, but in equity the mortgagor remains the actual owner, until he is debarred by his own default or by judicial decree.” 4 Kent’s Com. (8th ed.) 138; 1 Hilliard on Mort. 2, § 2. Mortgages and deeds of trust are clearly within both the letter and the spirit of the act.
There is no support in the evidence for a claim that possession of the premises was abandoned or surrendered pursuant to the Axtel mortgage. .On the contrary, the evidence is specific and uncontradicted that it was abandoned and surrendered pursuant to the mortgages of appellant. It, hence, must follow, that as to the homestead estate,—i. e., an estate in whatever title the Woods had in the property,—measured by $1000 in value, appellant’s mortgages are entitled to priority.
The decree of the court below is reversed, and the cause remanded.
Decree reversed.