Mr. Justice Beeese
delivered the opinion of the Court.
This was an action of ejectment, brought in the McLean Circuit Court, for the recovery of the west half of the southeast quarter of the south-east quarter of section twenty-nine, and the west half of the east half of the north-east quarter and the west half of the north-east quarter of section thirty-two, in township twenty-three north, in range two east, all lying in that county.
On not guilty pleaded, the jury found a verdict for the plaintiff, in due form, that the defendant was guilty of withholding the possession of the west half of the west half of the north-east quarter of section thirty-two, for which judgment was entered; and as to the residue, not guilty.
A motion was made by the plaintiff for a new trial, not under the statute, which was overruled, and the case brought here by writ of error.
Both parties assign errors on the record. The plaintiff assigns for error:
1. In allowing defendant to prove that he was the head of a family, and lived with them on the land.
2. In allowing defendant to claim and prove bis homestead rights against plaintiff.
3. In allowing defendant, out of land described, his homestead of the value of one thousand dollars.
4. In not setting aside verdict, and not allowing plaintiff a new trial.
The defendant assigns the following:
1. Admitting a copy of trust deed to be read to the jury.
2. Admitting the note to be read to the jury.
3. Admitting the deed from Gridley to Perry to be read to the jury.
4. Admitting evidence of the value of the land.
5. Refusing to let defendant prove that a part of the land was not his; that there was a superior outstanding title to the same.
Disposing of the errors assigned by the defendant, we will proceed to consider those assigned by the plaintiff, as upon them the controversy, for the most part, hinges.
As to the defendant’s first error assigned, we see no force in it. The witness, A. Gridley, was the grantee under the deed, and therefore the custodian of it. His testimony is full to the point, that he made diligent search for the deed in the place where it ought to have been, and in places where it was probable it might have been, in good faith, with a view to finding it, bringing the case within the rule established in Mariner v. Sanders, 5 Gilm. 113; Rankin v. Crow, 19 Ill. 626, and Dickinson v. Breeden, 25 Ill. 186. As to the supposed alteration of the deed by changing James to Wilson, it must be regarded, as a copy only was in evidence, as an error of the clerk in making the copy. The whole deed shows that Wilson Lindley was the granting party. Hibbard v. McKindley, 28 Ill. 240.
The second error assigned is not relied on. The third questions the validity of the sale by Gridley as trustee, on the ground that it was made by him after he had assigned the ote to other parties.
It is a well-settled principle, that the assignment of a note secured by mortgage, carries the security with it. As in this case, the security contained a power to the morgagee, or his assigns, to sell; and the assignment of the note wonld have transferred this power also. It is a power appendant to the estate and coupled with an interest. It is irrevocable, and is deemed part of the mortgage security, and vests in any person who becomes, by assignment or otherwise, entitled to the money thus secured to be paid. 4 Kent’s Com. 146. This able commentator further says, if the power be given to the donee and his assigns, it will pass by assignment, if the power be annexed to an interest in the donee. Id. 327. Wilson v. Troup, 2 Cowen, 197; Sargeant v. Howe, 21 Ill. 148; Vansant v. Allmon, 23 Ill. 30, and cases there cited.
It follows from these principles, that, had Gridley actually assigned the note to another party, this power to sell would have passed from him, and consequently, after the assignment, could not be executed by him. The power would vest absolutely in his assignee, to be executed by him. Put is there any evidence of such assignment? It is true, the record shows that the plaintiff offered the note executed by Lindley to Gridley, in evidence, on which appears this writing, “ Pay A. Gridley & Co. — A. Gridley which, the defendant insists, is an assignment of the note to A. Gridley & Co. It does not appear, that the note was ever delivered to A. Gridley & Co.; and if not delivered, but remained in the possession of the original payee, he could erase the assignment at any time, and cannot be considered as having parted with his interest in the note. The whole proceeding shows he had not, in fact, assigned the note, or parted with his possession or property in it. Not having done so, the note remained his property, with the power to collect it, as provided in the mortgage. There has been no assignment of the note, and therefore, none of the power to sell; but that power has been properly executed by the mortgagee. The object in introducing the note could only have been to show a balance due when the sale was made, and that former credits had been properly applied. The case did not call for the production of the note, and it was not necessarily in the case. Remaining in the hands and possession of the payee and mortgagee, whatever writing he may liave put upon it was in bis power to erase or otherwise render inoperative. It did not, of itself, conclude him as to the fact of an assignment.
The fourth point made on the third, error assigned, is disposed of by the considerations we have already stated, that there is no' evidence of any alteration in the deed. It is simply a clerical error, in writing in one part of the deed the name James Lindley, instead of Wilson Lindley, the.true name of the grantor, as all other parts of the deed most plainly show. As to the other point, the deed to Perry does recite an advertisement of the sale, and a sale in conformity to the advertisement, and the advertisement was proved by the testimony of the printer.
Upon the fourth error assigned, it is contended, that the value of the land was not in controversy, and therefore no proof of its value should have been allowed. That the premises, though made up of several distinct tracts of land, were but one entire tract, for the purposes of a homestead, and which could not be sold or mortgaged, or otherwise conveyed by deed, without the assent of the wife, expressed in the mode prescribed by the statute.
The consideration of this point involves the errors assigned by the plaintiff. The real controversy is, were the premises a homestead, and if so, did the purchaser under the mortgage sale acquire a right to eject the mortgagor and his family, the mortgage having been executed subsequent to the act of 1857, and the wife not having joined in the deed and released the benefits of the homestead act, in the mode pointed out in that act?
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Mr. Justice Beeese
delivered the opinion of the Court.
This was an action of ejectment, brought in the McLean Circuit Court, for the recovery of the west half of the southeast quarter of the south-east quarter of section twenty-nine, and the west half of the east half of the north-east quarter and the west half of the north-east quarter of section thirty-two, in township twenty-three north, in range two east, all lying in that county.
On not guilty pleaded, the jury found a verdict for the plaintiff, in due form, that the defendant was guilty of withholding the possession of the west half of the west half of the north-east quarter of section thirty-two, for which judgment was entered; and as to the residue, not guilty.
A motion was made by the plaintiff for a new trial, not under the statute, which was overruled, and the case brought here by writ of error.
Both parties assign errors on the record. The plaintiff assigns for error:
1. In allowing defendant to prove that he was the head of a family, and lived with them on the land.
2. In allowing defendant to claim and prove bis homestead rights against plaintiff.
3. In allowing defendant, out of land described, his homestead of the value of one thousand dollars.
4. In not setting aside verdict, and not allowing plaintiff a new trial.
The defendant assigns the following:
1. Admitting a copy of trust deed to be read to the jury.
2. Admitting the note to be read to the jury.
3. Admitting the deed from Gridley to Perry to be read to the jury.
4. Admitting evidence of the value of the land.
5. Refusing to let defendant prove that a part of the land was not his; that there was a superior outstanding title to the same.
Disposing of the errors assigned by the defendant, we will proceed to consider those assigned by the plaintiff, as upon them the controversy, for the most part, hinges.
As to the defendant’s first error assigned, we see no force in it. The witness, A. Gridley, was the grantee under the deed, and therefore the custodian of it. His testimony is full to the point, that he made diligent search for the deed in the place where it ought to have been, and in places where it was probable it might have been, in good faith, with a view to finding it, bringing the case within the rule established in Mariner v. Sanders, 5 Gilm. 113; Rankin v. Crow, 19 Ill. 626, and Dickinson v. Breeden, 25 Ill. 186. As to the supposed alteration of the deed by changing James to Wilson, it must be regarded, as a copy only was in evidence, as an error of the clerk in making the copy. The whole deed shows that Wilson Lindley was the granting party. Hibbard v. McKindley, 28 Ill. 240.
The second error assigned is not relied on. The third questions the validity of the sale by Gridley as trustee, on the ground that it was made by him after he had assigned the ote to other parties.
It is a well-settled principle, that the assignment of a note secured by mortgage, carries the security with it. As in this case, the security contained a power to the morgagee, or his assigns, to sell; and the assignment of the note wonld have transferred this power also. It is a power appendant to the estate and coupled with an interest. It is irrevocable, and is deemed part of the mortgage security, and vests in any person who becomes, by assignment or otherwise, entitled to the money thus secured to be paid. 4 Kent’s Com. 146. This able commentator further says, if the power be given to the donee and his assigns, it will pass by assignment, if the power be annexed to an interest in the donee. Id. 327. Wilson v. Troup, 2 Cowen, 197; Sargeant v. Howe, 21 Ill. 148; Vansant v. Allmon, 23 Ill. 30, and cases there cited.
It follows from these principles, that, had Gridley actually assigned the note to another party, this power to sell would have passed from him, and consequently, after the assignment, could not be executed by him. The power would vest absolutely in his assignee, to be executed by him. Put is there any evidence of such assignment? It is true, the record shows that the plaintiff offered the note executed by Lindley to Gridley, in evidence, on which appears this writing, “ Pay A. Gridley & Co. — A. Gridley which, the defendant insists, is an assignment of the note to A. Gridley & Co. It does not appear, that the note was ever delivered to A. Gridley & Co.; and if not delivered, but remained in the possession of the original payee, he could erase the assignment at any time, and cannot be considered as having parted with his interest in the note. The whole proceeding shows he had not, in fact, assigned the note, or parted with his possession or property in it. Not having done so, the note remained his property, with the power to collect it, as provided in the mortgage. There has been no assignment of the note, and therefore, none of the power to sell; but that power has been properly executed by the mortgagee. The object in introducing the note could only have been to show a balance due when the sale was made, and that former credits had been properly applied. The case did not call for the production of the note, and it was not necessarily in the case. Remaining in the hands and possession of the payee and mortgagee, whatever writing he may liave put upon it was in bis power to erase or otherwise render inoperative. It did not, of itself, conclude him as to the fact of an assignment.
The fourth point made on the third, error assigned, is disposed of by the considerations we have already stated, that there is no' evidence of any alteration in the deed. It is simply a clerical error, in writing in one part of the deed the name James Lindley, instead of Wilson Lindley, the.true name of the grantor, as all other parts of the deed most plainly show. As to the other point, the deed to Perry does recite an advertisement of the sale, and a sale in conformity to the advertisement, and the advertisement was proved by the testimony of the printer.
Upon the fourth error assigned, it is contended, that the value of the land was not in controversy, and therefore no proof of its value should have been allowed. That the premises, though made up of several distinct tracts of land, were but one entire tract, for the purposes of a homestead, and which could not be sold or mortgaged, or otherwise conveyed by deed, without the assent of the wife, expressed in the mode prescribed by the statute.
The consideration of this point involves the errors assigned by the plaintiff. The real controversy is, were the premises a homestead, and if so, did the purchaser under the mortgage sale acquire a right to eject the mortgagor and his family, the mortgage having been executed subsequent to the act of 1857, and the wife not having joined in the deed and released the benefits of the homestead act, in the mode pointed out in that act?
Although by the words of the original act the homestead is protected only against a levy and forced sale under the process or order of any court of law or equity, unless it has been duly released, yet when we consider the object and purposes of the amended act, we can have no doubt the intention of the legislature was, so to protect the homestead as to shield it from the claims of creditors, and from the improvidence of the husband, for the benefit of the wife and children. This is evident from the amendment of 1857, which requires the wife’s release of the benefits of the act, wherein it is emphatically declared that it is the object of the act to require in all cases her signature and acknowledgment as conditions to the alienation of the homestead. It is a right, cast upon her for her benefit and that of her children, of which she and they cannot be deprived in any other way .than that prescribed in the act itself. A proceeding by ejectment, to be followed by a writ of possession, accomplishes what the act designs shall not be accomplished by a levy and forced sale; and the inj ury to her is equally as great, and the object of the act completely defeated. The separate property of the wife, which she may own in fee, cannot be taken from her without her free consent, to be manifested as the statute directs; nor can she be deprived of dower in her husband’s estate, except, by her own act. No judgment or decree of a court, no deed to which she is not a willing party, can deprive her of this right; and this right of homestead is equally inviolate, in spite of creditors .or husband. Nor does the law require her or her husband to do any act to secure this light. They are both passive, whilst the law silently but effectually throws around them its protecting shield. It follows from this, that in any action seeking to deprive them of this right, the right can be interposed in defense. So long as the premises are occupied as a homestead, the deed, without the release of the husband, and wife, if he has one, can have no effect to deprive them of the homestead ; and this right can be set up in any action brought to eject them from premises so circumstanced. Patterson v. Kreig, 29 Ill. 518.
It was then competent to show, in this action of ejectment, that the premises were the homestead and protected by the law; and that they exceeded in value one thousand dollars, was immaterial in this kind of action. “ In this case, it appears, the jury found a tract of twenty acres not parcel of the homestead, and for this the plaintiff has a verdict and judgment, and we see no cause to disturb either. The judgment must be affirmed.
Judgment affirmed.