Barrett v. Bogardus

71 Ill. App. 407, 1897 Ill. App. LEXIS 52

• Court: Appellate Court of Illinois
• Decided: September 20, 1897
• Status: Published

Opinion

Me. Presiding Justice Crabtree

delivered the opinion of the Court.

The main contention of appellant is, that because appellee noted upon his schedule that the title to the piano was in the Aurora Piano Co. he is now estopped from claiming it as his property. It is not denied that the schedule was in exact compliance with the law, otherwise than this notation of ownership in the piano company. But even though that memorandum was made, appellee distinctly stated that he desired to avail himself of the benefit of the exemption law, and that he claimed all the property listed in the schedule as exempt under the law. He was mistaken as to the title being in the piano company, as was developed in the trial of the replevin suit, bub we think so far as he had any interest, he was entitled to have the benefit of the exemption law. It was the clear duty of the sheriff to summon three householders to “ appraise the property * * * ” and fix the “ fair Valuation on each article contained in the schedule,” as provided by statute, and failing to do this, he had no right to the property under his levy. The doctrine of estoppel has no application so far as.appellee is concerned. There seems to have been no element of fraud. He did not seek by his schedule to deceive any one. Had he made no mention of the rights of the piano company in view of the agreement with it, he would have been doing quite right so long as he and the company mistakenly supposed that such agreement transferred the title of the property to the company. But even had that agreement been carried out, he still had an equity in the piano which was to be recognized in case he became able to redeem.

It would seem that if the doctrine of estoppel applies any- . where in the case, it would be against appellant. He caused the piano to be levied upon as the property of appellee. He resisted the replevin suit on the ground that the piano was appellee’s property, and subject to levy under the execution. Having succeeded in that suit, he now claims that appellee has no right to the benefit of the exemption law under his schedule, because he mistakenly stated the title to be in the piano company. Appellant ought not to be permitted now to take that position. We think the judgment is just, and finding no error in the rulings of the court, it will be affirmed.