Davis v. Ransom et al. joined, the jurors of a jury came," etc., who returned their verdict. A motion was made for a new trial, and overruled. At the October term, 1857, an order was made placing the cause upon the docket on the motion of defendant's attorney, who produced the order of this court remanding it, and the cause was continued. At the June term, 1858, the plaintiffs obtained leave to file a new replication, and under this leave filed a replication to the second plea, traversing the allegation that Regan was a deputy marshal, concluding to the country, and the similiter added; and, also, another replication traversing the allegation of the judgment as set out in that plea, concluding to the country, with the similiter added; and a replication, traversing the allegation of the execution, as set out in the plea, concluding to the country, with the similiter added. At the October term, 1858, the defendant's counsel filed a demurrer to these several replications, and at a subsequent day of the term, the record states, "now comes on to be heard the plaintiffs' replications to the defendant's pleas herein, and after argument of counsel, and the court being fully advised in the premises, it is ordered that the said replications be overruled; and now to try the issue herein, came the jurors of a jury," etc. A verdict was rendered for the plaintiffs, and a motion for a new trial overruled, and bill of exceptions filed. The clerk has, evidently, made up an incorrect record of the proceedings. It was the defendant's demurrer to the plaintiffs' replications which the court heard and overruled, probably. for the reason that a demurrer could not be interposed after an issue of fact was made up. The demurrer was too late, and the court might well omit to notice it. But if it be not so, the party cannot now complain, as the record shows no joinder in demurrer, and that the defendant went into the trial voluntarily, without calling up, or noticing in any manner, his demurrer. It is too late now to urge this as ground of reversal. Parkers v. Palmer, 22 Ill. 489. The fourth point made is not sustained by the record. Issues of fact appear to be made up on all the pleas, by adding the similiter without objection, which is usually done by the attorney tendering the issue, and is not always signed by counsel. The similiter may be put to a plea at any stage, by any party; and it is not error to proceed to trial without it. Stumps v. Kelly, 22 Ill. 140; Walker v. Armour, ib. 648. The main point in the case is the fifth, which is, that the court erred in refusing to admit the execution and levy. The facts are, that the execution, levy and return were all offered together, unaccompanied by any proof that the person making the levy and return was an officer authorized to make Ely et al. v. Eastwood et ux. them. Besides, the execution, as set out in the bill of exceptions, wants a seal, and is therefore void, and of no effect. These papers being properly, as we conceive, rejected by the court, the defendant's case was cut up by the roots. Without this evidence, the defendant had no right to raise the question of fraud, or any other question affecting the right of possession of the party, from whom an unauthorized individual forcibly and without authority took the goods. There was no proof that the deputy marshal was such officer, either de jure or de facto, and not being such, the defendant could not justify under his acts or orders. We see no error in the instructions, and must affirm the judgment. Judgment affirmed. QUARTUS ELY, and ENOCH L. ROBERTS, Plaintiffs in Error, v. MARTIN EASTWOOD, and MARY EASTWOOD, Defendants in Error. ERROR TO LEE. A sale under a trust deed executed prior to the passage of the law of 1857, does not come within the provisions of the Homestead Exemption Act. DEFENDANTS in error, on the fourth of February, 1860, filed their bill in the Lee Circuit Court against plaintiff in error, Ely, alleging that, on the fourteenth day of January, 1857, defendants in error made their promissory note, payable to Quartus Ely, twelve months after date thereof, for the sum of six hundred and thirty-three dollars, for an indebtedness from said Martin Eastwood to said Ely; that to secure the payment of said note, they, at the time of making the same, executed and delivered to said Ely, an instrument purporting to be a deed of trust, a copy of which is attached to the bill, substantially as follows: "Whereas Martin Eastwood, and Mary his wife, party of the first part, of the county of Lee and State of Illinois, have executed their one certain promissory note of even date herewith, payable to Quartus Ely or order, twelve months after the date thereof, for the full sum of six hundred and thirty-three dollars: Now, therefore, the said Martin Eastwood, and Mary his wife, party of the first part, to secure the payment of said note according to its tenor and effect, in consideration of one dollar, and the further sum of six hundred and thirty-three dollars, the receipt whereof is confessed, doth grant, bargain and sell unto Quartus Ely, of the county of Lee, and State of Illinois, his Ely et al. v. Eastwood et ux. heirs and assigns, forever, the premises described as follows: (here follows description of premises in question), situated in the county of Lee, and State of Illinois, together with all and singular the privileges and appurtenances thereunto belonging. In trust, nevertheless, that in case default be made in the payment of said note, or any part thereof, according to the tenor and effect of said note, then, on the application of the legal holder of said note, the said Quartus Ely, after publishing a notice in a newspaper printed in the said county of Lee, ten days before the day of such sale, to sell the said premises, and all right and equity of redemption of the said Martin Eastwood and Mary his wife, party of the first part, their heirs and assigns, therein, at public auction at the court house door, in said county of Lee, to the highest bidder for cash, at the time mentioned in such notice. And to make, execute and deliver to the purchaser or purchasers thereof a deed or deeds for the premises so sold, and out of the proceeds of such sale to pay all costs and expenses incurred in advertising and selling said premises, also the principal and interest due on said note. And the said Martin Eastwood and Mary his wife, party of the first part, for themselves, their heirs, executors and administrators, covenant with the said Quartus Ely, that they are well seized of said premises in fee simple, and that they have good right and full power to grant, bargain and sell the same in form aforesaid, that the same are free from all incumbrance, and that they will, and their heirs, executors and administrators shall forever warrant and defend the same against the lawful claim of all persons. Signed and sealed, etc. That at the time of signing the deed, a certificate of acknowledgment was thereto attached, in the words and figures following, to wit: "STATE OF ILLINOIS, LEE COUNTY, ss. "I, Samuel C. Eells, Notary Public in and for said county, in the State aforesaid, do hereby [certify] that Martin Eastwood, and Mary his wife, who is personally known to me as the same person whose name is subscribed to the within trust deed, as having executed the same, appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument of writing as their free and voluntary act, for the uses and purposes therein set forth. And the said Mary Eastwood, wife of the said Martin Eastwood, having been by me examined, separate and apart, and out of the hearing of her husband, and the contents and meaning of the said trust deed having been by me made known and fully explained to her, acknowledged that she had freely and voluntarily executed the Ely et al. v. Eastwood et ux. same, and relinquished her dower to the lands and tenements therein mentioned, without compulsion of her said husband, and that she does not wish to retract the same. "Given under my hand and notarial seal, this 14th day of January, A. D. 1857. SAMUEL C. EELS." That Ely procured the same to be recorded in the recorder's office of the county of Lee, on the fifteenth day of January, A. D. 1857. That by the terms of said deed, in default in the payment of said note, Ely was authorized to sell the real estate therein described, to the highest bidder for cash, after having given notice, etc. That on the twenty-eighth day of September, 1858, Ely induced defendants in error to appear before one Platt Townsend, a justice of the peace for Lee county, and make acknowledgment of the execution of the deed at that time, which they accordingly did; and the said Townsend then and there attached to the said deed of trust a certificate, of which the following is a copy: "STATE OF ILLINOIS, LEE COUNTY, ss. "On this 28th day of September, 1858, before me, Platt Townsend, a Justice of the Peace, personally appeared Martin Eastwood and Mary Eastwood, to me personally known to be the real persons whose names are affixed to the foregoing deed of conveyance, and acknowledged that they executed the same for the purposes therein mentioned. And the said Mary Eastwood, on examination apart from her said husband, and having had the contents of the foregoing deed fully explained to her by me, acknowledged that she executed the same freely and voluntarily, and without force or compulsion of her said husband, and that she does not wish to retract the same. "In witness whereof, I have hereunto set my hand and seal, the day and year first above written. PLATT TOWNSEND, [SEAL.] That Ely, also on that day, procured Eells to attach his notarial seal to the certificate of acknowledgment, by him attached to said deed, which Eells had not done before that time; and that Ely thereupon procured said deed, together with the several certificates of acknowledgment thereof, to be again recorded, etc. That at the date of said deed, and for a long time prior thereto, and up to the said 28th day of September, 1858, the whole of the real estate mentioned and described in said deed of trust, was the property of the defendant in error, Mary Eastwood; that at the date of said deed, the said Martin Eastwood was, Ely et al. v. Eastwood et ux. and from thence has been, a householder, having a family, for which he provides; that the whole of the premises lie together in one tract, having a dwelling house situated upon the same, in which the said Eastwood, together with his family, resided at the time of the making of the deed, and have continued to reside thereon; that the debt, to secure which said deed was executed, was not incurred for the purchase price or improvement of said premises; that defendants in error have never executed any release or waiver of the rights of either of them to said premises as a homestead. That Ely had advertised the premises for sale, under the power in said trust deed contained, such sale to take place on the 7th day of February, 1860, and that unless restrained, Ely was about to sell the premises accordingly. The bill prays that Ely may answer under oath, etc. And that he might be enjoined from all proceedings, under and by virtue of said deed of trust; and prays for general relief. Ely filed his answer to said bill, which, as subsequently amended, is as follows: Saving and reserving, etc., adınits that defendants in error made and executed their certain promissory note as alleged in said bill, drawing interest however at the rate of ten per cent. per annum after maturity; admits that defendants in error at the same time executed and delivered the said trust deed to se cure the payment of said note. Admits that the copy of the certificate of acknowledgment set out in said bill, made on the 14th of January, 1857, is correct, with the exception that the word "certify" is omitted in such copy, and with the further exception that an impression of the notarial seal of the said notary public before whom such acknowledgment was taken, was attached to the original certificate at the time the same was made. Admits that he procured said deed to be recorded, as alleged in said bill; and that by the terms of said deed, in default of the payment of said note, he was authorized to advertise and sell said premises as alleged in said bill. Avers the truth to be that it was the expressed intention, object and purpose of said defendants in error at the time of making said deed, as well as of himself, the said Ely, that the defendants in error should convey to the said Ely all and singular the estate, right and interest as well of the said Martin as of the said Mary, in and to the said premises in said trust deed described, for the purposes in said deed expressed, viz., to secure the payment of said note. Admits that after the said deed had been made, the said Martin Eastwood applied to the said Ely, to procure him to transfer the said note to Messrs. Kendall and Eggleston, in order that the said Martin Eastwood might, |