This case is, in all material particulars, like that of McDonald v. Crandall, 43 Ill., 231, and we must hold, as was there held, that the elder mortgagee takes the title.
Deeree affirm-ed.
1. Homestead exemption—effect of waiver and abandonment as between junior and senior mortgagees. Where amortgag or executes a first and second mortgage on premises in which he has a homestead, without a release thereof in the first, but with a release in the second, and then abandons the premises, the first mortgage is the prior lien, and takes, discharged of the homestead. See McDonald v. Crandall, 43 Ill., 231, applied to the facts in this case.
Wbit of Ebbob to the Circuit Court of Macon county; the Hon. O hables Emebson, Judge, presiding.
Hamsher and wife conveyed, by mortgage, to Thomas O. Smith, a lot in Decatur, in which they had a homestead, without *226waiving or releasing it in the deed. Subsequently the same parties conveyed by mortgage, to Coe and Yan Duyn, the same premises, and in the deed to them, the homestead was waived and released in due form. Smith’s mortgage was dated January 12th, 1858; Coe and Yan Duyn’s mortgage dated December' 10th, 1860. January 25th, 1862, Smith filed his bill, praying a foreclosure, mailing Coe and Yan Duyn parties defendant. Coe and Yan Duyn filed a cross-bill praying that their mortgage be decreed the first lien, and that it be foreclosed, having set up the same facts in answer to complainant’s bill. The court in ■ the decree finds that the premises were abandoned by Hamsher, in the spring of 1861. Upon these facts, the court gave a decree to complainants, ordering the premises sold and the proceeds applied to Smith’s mortgage, and the remainder, if there should be any, was to be applied to the Coe and Yan Duyn mortgage, and the final remainder to Hamsher. The rendition of this decree, postponing Coe and Yan Duyn’s mortgage to the Smith mortgage, is the error assigned.
Mr. H. Crea and Mr. H. S. Green, for the plaintiffs in error.
We maintain that the mortgage to Coe and Yan Duyn should have priority, and in support of this view, we cite Green v. Marks, 25 Ill. 221; Brown v. Coon, 36 Ill. 248; Fishback v. Lane et al., 36 Ill. 438; Bliss v. Clark, 39 Ill. 590.
Messrs. Nelson & Roby, for the defendants in error:
1. By the abandonment of the homestead, the fee alone is left for either mortgage to operate on; the maxim, first in time is first in right, then applies.
2. There being no homestead in the premises at the date of filing the bills, the mortgage liens attach in the order of their priority.
*2273. A man cannot have two or more homesteads at the same time one—in possession, and the rest sold or rented out. Laws of 1851 and 1857; Kitchell v. Burgwin, 21 Ill. 40; Green v. Marks, 25 Ill. 221; Boyd v. Cudderback, 31 Ill. 119; Smith v. Miller et ux., ib. 160; Gindo v. Gindo, 14 Cal. 507; Harper v. Forbes, 15 Cal. 204; Tillotson v. Mullord, 7 Minn. 520; Davis, Moody & Co. v. Kelley et al., 14 Iowa.
This case is, in all material particulars, like that of McDonald v. Crandall, 43 Ill., 231, and we must hold, as was there held, that the elder mortgagee takes the title.
Deeree affirm-ed.