the effect produced. Ball v. Ray, 8 L. R. Ch. App. 467, is in point. There a gentleman who leased a basement of a house was enjoined from keeping his three horses therein, because they disturbed the owner and occupants of a private hotel adjoining. "I entirely agree," said Mellish. L. J.," with what has been said by the Lord chancellor, that when in a street like Green street, the ground floor of a neighboring house is turned into a stable, we are not to consider the noise of horses from that stable like the noise of a piano forte from a neighbors' house, or the noise of a neighbors' children in their nursery, which are noises we must necessarily expect and to a certain degree put up with." In a Scotch case, Robertson v. Campbell, 13 F. C. 61, the printing press of the defendants when in use produced a vibratory sound which shook the plaintiff's building to the annoyance of his family. The court held it a nuisance. So, also, in Johnson v. Constable, 3 D. 1263. In Harrison v. Good, 11 L. R. (Eq.) 338, the noise of children attending an adjoining school was held not to constitute a nuisance. But in Inchbald v. Barrington, 4 L. R.Ch. App. 388, the playing of a brass band, and in Walker v. Brewster, 5 L. R. (Eq.) 25, the discharge of fireworks, were both held to be nuisances. Perhaps the latest decision on the subject of nuisance by noise is that of Harrison v. St. Mark's Church, 4 Cent. L. J. 329, decided by the Common Pleas Court of Philadelphia and affirmed on appeal to the supreme court, where an injunction was granted restraining the ringing of a chime of bells, to the disturbance of the neighboring residents. This case resembles the English case of Soltau v. DeHeld, 9 Eng. L. & Eq. 104. For a further discussion of the subject, see Wood on Nuisances. §§ 542

574.

FORCED SALES UNDER MORTGAGES ON HOMESTEADS.

Can homesteads be mortgaged, and is it necessary for the wife to join in the mortgage? This question has excited much interest in some sections of the country. In the Southern Law Review, Vol. IV., N. S. No. 1, a very learned and instructive article on the Effect of Exemption Laws on Fraudulent Conveyances, presents the subject, as far as it goes, in a clear and forcible light, under the law of frauds. There are other ints connected with

homestead exemption which have come funder the judicial investigation of the writer, which may not be uninteresting to the bench and bar. In many of the states a certain amount of property, real and personal, is exempt from "forced sale." The meaning of the term"forced sale" has received judicial explana tion. The Supreme Court of the State of California has decided that "a forced sale is not The synonymous with a sale on execution. latter may be, and often is voluntary in every respect. Its quality, as being voluntary or forced, depends not on the mode of its execution, but upon the presence or absence of the owner." Peterson v. Hornblower, 33 Cal. 266. The court, in this case, held in relation to the homestead which had "The homestead was not been mortgaged:

It has

forced upon him, but he was at liberty to avail himself of its protection or not, at his election; the consent of his wife, if he was a married man, being required in order to secure to her also the protection of the homestead exemption." This was under the requisites of the Constitution of California. been held in Texas that any sale is a forced sale. The courts of that state hold that the sale. exemption laws are designed to protect the man and his family in the enjoyment of such property as is legally exempt, and that the mortgagee can not have the aid of a court to enforce his contract.

It was held in the New York Court of Ap peals, by Mr. Justice Denio, that a stipulation in a promissory note "waiving and relinquishing all right of exemption of any property I may have from execution on this debt," is void as against the policy of the law exempting property from sale on execution which was designed for the protection of poor men and their families.

On principles of equity, the case of Pratt v. Barr, 5 Biss., is clearly right. The debtor purchased goods on credit and then sold his entire stock, receiving in part payment the premises which he claimed as a homestead. The creditors filed a bill to have the property sold to satisfy their debts. The court said: "The mere statement of the facts decides the case in the conscience of every honest man, that neither in law nor justice the exemption should be allowed. The defendants can not expect the courts to assist them in consummating the intended fraud. A party can not

turn that which is granted him for the comfort of himself and family into an investment of fraud." The majority of the decisions, state and federal, sustain the principle laid down in Pratt v. Barr, cited supra.

We find in a very well written opinion by Randall, C. J.-Petterson v. Taylor, 15 Florida: "An exemption of property from sale by process of law is a personal privilege which may be waived by the owner of the property conveying an interest by means of an absolute or defeasable conveyance of property otherwise exempt from such sale." This was a mortgage of personal property, and it was decided that it was not competent for the mortgagor to claim that the property was exempt from sale under a decree of the court foreclosing the mortgage, the mortgagor claiming that it was exempt under the constitution from forced sale. The court very wisely said: "We do not believe it was the intention of the constitution to deprive the citizens of the common rights and privileges pertaining to property and credit, so far as to render their condition abject and hopeless in their poverty, beyond its express provisions, and the evident intention must control our construction of its language without doing violence to it. And where a borrower obtains a loan of money by a pledge and consent, legally given, that certain specified property which was pledged as security, and without which the loan would not have been obtained, will be sold to pay the debt, the law providing the remedy is before the debtor when the pledge is given, and enters into the contract, and can not be changed so as to affect the contract. Both parties have assented to it, and the action of the court is but carrying out specifically what has been consented to; so that a decree of the court, instead of affecting a forced sale, merely compels the parties to abide by their specific agreement, and the sale is decreed in pursuance of that contract." The clause in the constitution of the State of Florida, under which the above decision was made, says that "one thousand dollars worth of personal property

shall be exempted from forced

sale under any process of law."

In a well discussed case, a clause in the statute of Illinois, exempting homesteads "from levy and forced sale under any process

or order from any court of law or equity," was construed not to exempt from sale under a power given in a deed of trust. Dawson v. Hayden, 67 Ill. 52.

The homestead exemption is entirely the creature of the statute laws of the different states. It is carved out of the real estate owned by the husband, father or mother or other head of the family. By common law, the wife has no interest in her husband's estate, except dower. In relation to the right of the husband, or of husband and wife combined, to alienate the homestead, we are compelled to look to the statute under which the question may arise.

The right of homestead, which has been established with greater or less stringency in at least thirty-four of the states, partakes more nearly of the character of an estate for life than any other, and is treated as coming within that category. 1 Washburn on Real Property, p. 342.

Washburn on Real Property contains a series of the most useful chapters on homesteads yet published. The frequent clauses in the laws on this subject render it necessary for the lawyer to make reference to the statutes, or else he may be mislead by the author; indeed, he cautions his reader against the error he may fall into. We say this without disparagement to the great work of the author from whom we quote with pleasure and satisfaction: "When it is sought to define the nature and character of the property or estate which one has in the homestead which the law creates in his favor, and what rights and duties are attached to the same, it will be found difficult to do more than borrow the language of the statutes and of the courts in construing them in the different states." 1 Washburn on Real Property, p. 380. The same author adds: "This homestead estate is, nevertheless, the subject of sale, mortgage, release, and in some states, of being lost by abandonment. The subject divides itself into the mode in which a conveyance may be made, and how the right of homestead may be lost or abandoned." Ib., vol. 1, p. 405. "The same diversity prevails in the different states, as to how far and by what means a homestead right once acquired can be lost by abandoning the premises, though, as a general proposition, whenever a a new homestead is gained a prior one is lost." Ib., vol. 1, p. 420.

The various states have scarcely the same statutes in any two instances clearly alike on this subject, yet they are quite uniform in relation to the rights of the wife, and that she has an interest therein, and that she can relinquish, mortgage or abandon it.

The decisions and opinions of the different state courts on this subject would make a large volume. They frequently disagree, merely on account of the different statutes.

The field of American jurisprudence is full of efforts at fraud. In this particular department many attempts have been and are being made to perpetrate fraud on the homestead and exemption laws. We are pleased to find the great weight and predominancy of the decisions, though favoring and respecting exemption laws as alike necessary and humane in behalf of poor and suffering families, yet firm, consistent and honest in resisting the numerous phases of fraud which they as

prior mortgage was filed for record with his last mortgage. Held, on suit to foreclose the latter mortgage, that the release of the old mortgage and making of the new did not change existing rights, and that the new mortgage of B had priority over the mortgage of C. DICKEY and SHELDON, J.J., dissenting.

2. THE MORTGAGE GIVEN TO B NOT CONTAINING a waiver of the homestead, and the mortgage given to C expressly waiving that right: Held, that in the disposition of the proceeds of the sale of the mortgaged property, the balance remaining after B's mortgage, which represented the homestead right in the premises, should go to C, although no cross-bill had been filed by him to foreclose his mortgage, he, however, being made a party in the suit for foreclosure.

CRAIG, J., delivered the opinion of the court:

This was a bill in equity brought by Henry Williams to foreclose a mortgage executed by Chas. F. Morgan and wife, on certain premises in McHenry County, to secure an indebtedness of $3,700. The mortgagor and his wife, together with Chas. F. Morgan and Abraham Shafer, who also held mortgages on the same premises, were mere parties defendants to the bill. A decree of foreclosure was rendered in favor of complainant substantially as prayed for in the bill, to reverse which Shafer alone appealed.

It appears from the evidence that on the 17th day of March, 1868, Morgan borrowed of Williams $3,700, and gave his note for the amount, due in ten years, with interest, and a mortgage was executed to secure the payment of the note, bearing the same date. A certificate of acknowledgement was attached to the mortage, dated September 9th, 1868, which was in the form required by the statute, but the name of the justice was not signed to the same. On September 9th, 1868, the mortgage was recorded. Subsequently, and on the 7th day of October, 1871, the mortgage was again recorded, the certificate of acknowledgement having been signed by "James B. Church, Justice of the Peace," and bearing date September 9th, 1868. Prior to this, however, and on the 12th day of September, 1871, the appellant Shafer, loaned C. F. Morgan $500, and took a mortgage on the same premises, executed by Morgan and his wife, with full waiver of the homestead, which was recorded September 14th, 1871. On the 22nd day of December, 1871, Morgan and wife gave Williams a new mortgage on the premises to secure his old debt, which was duly acknowledged and recorded December 20th, 1871. A release duly executed by Williams of the prior mortgage was filed for record with the last mortgage.

It is conceded by appellant that although his mortgage was executed and recorded subsequently to the one first given appellee, yet the release by appellee of the prior mortgage and accepting the mortgage bearing date subsequent to the one held by him, gave his mortgage the prior lien, and this we understand to be the principal question presented by the record. The second mortgage contains the following clause: "This mortgage is made to secure the identical indebtedness mentioned in the certain mortgage upon the above described lands made by said party of the first part to said party of the second part, bearing date

March 17th, 1868, and recorded in the recorder's office of the recorder of said McHenry County, in book 30 of mortgages, on page 338." The truth of this statement is not controverted. No new note was taken, but the mortgage was given to secure the payment of the original note executed when the loan was first made. Nor does it appear that any substantial difference exists between the two mortgages. The rights and powers conferred by the two are similar in their character, while the right of dower had not been waived by the wife of the mortgagor in the first mortgage at the time it was executed, this defect had been cured, as appears by the certificate of acknowledgement subsequently obtained. The only difference we perceive in the two mortgages is, that the first one did not provide that the whole of the principal debt should become due on the failure to pay interest, while the latter contained that provision.

Where a party acquires a deed of lands upon which he holds an incumbrance by mortgage or otherwise, and the question arises whether the incumbrance is discharged by the conveyance, the intention of the

rights held by the complainant in and to the premises to the mortgagor, and the execution and delivery of the new mortgage, were simultaneous acts, and no intent was shown to change the relative rights of the parties by the change of the form of the security for the debt.

It is a principle well established that equity always looks to the substance, and not to the form of the transaction to determine its validity. Under this rule, no good reason can be shown why appellant should have priority. When he made the loan and accepted a mortgage, the record disclosed the fact that appellee had a prior lien. This record was constructive notice to him, and all others of appellee's rights, and whatever interest he acquired in the premises was subordinate to those held by appellee. Appellant has in no manner been misled or deceived, and under such circumstances, to give him priority of lien from the fact alone that appellee cancelled of record one mortgage, no portion of his debt having been paid. and at the same time accepted another mortgage, deriving no substantial advantage which he did

court of equity, be considered the controlling consideration. Campbell v. Carter, 14 Ill. 286; Richeson v. Nockenhill, 85 Ill. 124. If that principle should be applied here-and we perceive no reason why it should not be the facts surrounding the transaction all point to the conclusion that it was not the intention of the complainant to lose his original lien. The recitation in the mortgage that it was given to secure the identical indebtedness named in the other mortgage, the fact that the original note was not given up and a new one taken, in connection with the other fact that the release of the old mortgage and filing for record of the other one was done at the same time and as one transaction. all indicate that complainant had no intention whatever to give up his original lien on the mortgaged property.

This case is somewhat similar in its facts to Christie v. Hall. 46 Ill. 117, and the rule there announced must control here. In that case Ball gave Hall a mortgage on real estate to secure certain indebtedness, which was in form a deed. Subsequently judgments were rendered against Bal!. After the rendition of the judgments Hall conveyed the property to Ball, and at the same time took a new mortgage to secure the indebtedness, giving further time for payment. The party holding the judgments, under these circumstances, insisted that the judgments had priority over the second mortgage, but the court said: "In this case the delivery of the deed of conveyance to Ball, and the mortgage back to Hall, were simultaneous and instantaneous acts. There was no intention of the parties to change their relative rights, but simply to put the mortgage in legal form. And the acts being simultaneous, the title to the land and the rights under the mortgage vested at the same instant of time, and according to what was said in Curtis v. Root, there was no period of time when the judgment-lien could have attached as prior to that of the mortgage." The same may be said of this transaction. The conveyance or release of all

equitable. The court was, therefore, correct in declaring that appellee's lien was prior to appellant.

error.

The record, however, discloses one serious The homestead was not waived in appellee's mortgage, but in the one held by appellant, all homestead rights were waived. It was stipulated that the cause should proceed in the same manner as if commissioners had reported that the premises could not be divided and a homestead set off to Chas. F. Morgan, the stipulation to have the same effect as a report of commissioners that a homestead could not be set off. The court decreed a sale, and, out of the proceeds, after payment of costs, directed $1,000 to be paid Chas. F. Morgan. This was no doubt correct, so far as the rights of appellee were concerned, as he acquired a lien subject to the homestead rights of the mortgagor, but as to appellant, he occupied a different position. Morgan and wife had waived the homestead in the mortgage given him. It is true he did not file a cross-bill and ask to have his mortgage foreclosed, as he might have done, but this fact did not deprive him of his rights when the court proceeded to make a disposition of the proceeds of the sale of the mortgaged premises. Here was $1,000 to go to some person. It represented the homestead in the premises. Appellee had no claim on that fund. Morgan as against appellant was not entitled to it, for the reason he had conveyed the homestead right to appellant. We are therefore of opinion that so much of this $1,000 as was necessary to pay appellant's mortgage should have been decreed to appellant. No cross-bill was required for the purpose. Morgan filed no cross-bill, and yet the money was decreed to him. Upon the same principle it might have been decreed to appellant, as the two stand upon the same footing.

The decree of the circuit court will be so far modified as to require the $1,000 which represents the homestead to be brought into court by the commissioners after the sale, and so much of that

sum as shall be necessary will be awarded appellant to pay his mortgage, and the remainder thereof must be decreed to Morgan. In all other respects it might be affirmed. Other objections of a technical character have been urged against the decree, but we perceive no substantial merit in them.

The decree will be modified as to the $1,000 got from sale of the homestead, and in all other respects affirmed.

DICKEY, J., dissenting:

I concur in the conclusion reached in this opinion, and in the views on which the judgment is placed. I can not concur in what is said as to the priority of the liens. The first mortgage became, in my opinion, a nullity upon its discharge and execution of a new mortgage to secure the same debt. By the new mortgage the mortgagee obtained the dower right of the wife of the mortgagor, and also additional right in making the whole debt due upon failure of payment of any portion when due. On the principle of Campbell

V.

Carter, supra, the first mortgage was gone, and the mortgage taken for the same debt came in subject to the intervening liens.

SHELDON, J., dissenting:

1. A FATHER having passed through a space of fifteen or twenty inches wide, between the rear cars of two freight trains standing on a side track, within five or ten minutes afterwards returned in company with his daughter, between eight and nine years of age. As the father and daughter approached within five or six feet of the opening, in answer to an inquiry from the daughter as to how he got through, the father pointed out the opening, and in his immediate view the daughter proceeded to follow bis directions in passing through the opening, and was injured by the cars gog together; the cars being moved by an engine that Was about starting one of the trains from the side track. This opening was a few feet east of the east line of a street crossing. One of the trains entirely blocked up the street, and it was not shown that the men in charge of the train knew that any one was attempting to pass through the opening. In an action by the daughter for the injuries sustained: Held, 1. That the negligence of the father was imputable to the child. 2. That no negligence on the part of the train men was shown; that the accident occurred at a point where they had a right to presume no one would attempt to cross; and that, where persons attempt to

cross a railway at an accidental opening between cars, not in a highway, nor so placed as to invite the belief that it was left open for persons to pass through, they do so at their own peril. 3. That the obligations, rights and duties of railroad companies and travelers crossing them are mutual and reciprocal, and no greater degree of care is required of one than the other.

Appeal from Hannibal Common Pleas Court. George W. Easley, for appellant; H. J. Drummond and Wm. P. Harrison, for respondent.

NAPTON, J., delivered the opinion of the court: The injury which this suit sought to redress, to a bright little girl of eight or nine years of age, remarkably sprightly and attractive, the pet of her father and of the entire village where they lived, is calculated to excite the sympathy of jurors and judges. But in the administration of law considerations of this sort must be discarded, and the case must be investigated and determined upon established legal principles applicable alike to all. The facts in this case, so far as they relate to the circumstances attending this unfortunate accident, are very few and simple, and established mostly by the witnesses for the plaintiff; there is, indeed, a mass of testimony of medical men in regard to the connection between the ill-health of the plaintiff when suit was brought, and the injury which occurred eight years before, and the possibility of its having been occasioned by other causes. We shall omit any reference to this class of testimony, the question being one exclusively for the jury, and no points of law having been made on it in the instructions.

The town of Brookfield, in 1864, when this accident happened, contained about one hundred and fifty inhabitants. The main street, one hundred feet wide, ran north and south through it, crossing the defendant's railroad at right angles. The railroad, running east and west, consisted of three tracks-the main track, and two side tracks south of the main track. The father of the plaintiff had a store-house on the south side of the railroad, east of Mein street, and with his wife and daughter !e hotel or eating-house of the village, which was on the north side of all the railroad tracks, and west of Main street. Some time in the morning of June 1st, 1864-it is not material about the hour-Mr. Stillson left his store and crossed over to the hotel, where his wife and daughter were, and in doing so passed through an aperture left between the eastern and western-bound trains on the south side track, which he then found to be about twenty inches. After transacting the business which was the cause of this visit, probably to go to dinner, he was accompanied back by his little daughter the plaintiff, who said to him, as they walked along over the main track, where there were no cars, and over the first side-track where there were either no cars or a wide space between them on the railroad crossing: "Papa, how did you get over?" In answer to this question the father described to the child how he got over, and when they reached the second or south side track, where the crossing on Main street was totally obstructed, he pointed out to his child the place where he got over, and