Cochran v. Cutler

350 N.E.2d 59, 39 Ill. App. 3d 602, 1976 Ill. App. LEXIS 2617
CourtAppellate Court of Illinois
DecidedJune 14, 1976
Docket75-4
StatusPublished
Cited by26 cases

This text of 350 N.E.2d 59 (Cochran v. Cutler) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cochran v. Cutler, 350 N.E.2d 59, 39 Ill. App. 3d 602, 1976 Ill. App. LEXIS 2617 (Ill. Ct. App. 1976).

Opinion

Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiffs, Ronald C. and Elaine Cochran, secured a judgment against Albert and Catherine Kiwazek (who are not parties to this suit), the contract purchasers of a home in Du Page County. Thereafter, and without paying the Cochran judgment, the Kiwazeks conveyed their equitable interest in the real estate to the defendants, Brian D. and Roswitha Cutler, who took title and executed a mortgage to the defendant Taiman Federal Savings & Loan in the process. Plaintiffs filed suit to have their judgment declared a lien upon the land and for other relief. The trial court entered summary judgment in favor of plaintiffs declaring that plaintiffs’ judgment in the amount of *6230 stood as a lien upon the property. The defendants appeal, contending that the Cutlers succeeded to the Kiwazeks’ homestead exemption of *10,000 and that therefore the Cochran judgment may only be satisfied from the excess of Kiwazeks’ equity in the property at the time of their voluntary conveyance to the Cutlers.

During 1971 the Kiwazeks were purchasing the property under an unrecorded executory land contract and occupying it as their homestead. On December 16, 1971, the Cochran judgment was entered in another county in the amount of *6230. On January 1, 1972, an amendment to section 1 of the Homestead Act (Ill. Rev. Stat. 1971, ch. 52, par. 1, as amended by P. A. 77 — 437, §1, eff. January 1,1972) raised the exemption of the estate of homestead from *5000 to *10,000. A memorandum of the Cochran judgment was recorded in Du Page County on March 10,1972. On March 28, 1972, the Cutlers purchased the property from the Kiwazeks for *28,000, paying them *12,972.40, including earnest money and after prorations. The Cutlers executed a mortgage to the defendant Taiman in the amount of *25,200. At closing they paid off the vendors’ lien upon the property in the amount of *13,828.57.

The Cutlers were not advised of the plaintiffs’ judgment and had no knowledge of it at this time.

Defendants contend that the Cutlers are successors to the homestead estate of the Kiwazeks and are entitled to claim the amount of *10,000 pursuant to section 1 of the Homestead Act as exempt from the lien of plaintiffs’ judgment. They argue that the exemption should be deducted from the amount of Kiwazeks’ equity in the property and that the Cochrans were then entitled to receive the sum of *2972.40 which they allege represents the excess of the Kiwazeks’ equity in the property over the homestead estate exemption. They argue that the trial judge erred in applying the *5000 exemption in proceeds from the sale of a homestead, apparently pursuant to the second portion of section 6 of the Homestead Act (Ill. Rev. Stat. 1971, ch. 52, par. 6) since plaintiffs’ suit sought to impress a lien upon the property and not to recover from the proceeds of the sale. 1

Plaintiffs contend that the trial court correctly ruled that the judgment creditor had a valid first lien on the premises pursuant to sections 1 and 3 of the Judgments Act (Ill. Rev. Stat. 1971, ch. 77, pars. 1,3) because the sale proceeds exceeded the *5000 homestead exemption provided in section 6 of the Homestead Act. They reason that the homestead estate of the Kiwazeks was abandoned when they deeded the property to the Cutlers as grantees who thereupon took possession. In addition, they argue that the trial court correctly ruled that the judgment debtors received a sufficient amount in excess of the *5000 exemption to entirely satisfy the plaintiffs’ lien. Finally, they contend that even if the *10,000 homestead exemption is applied, the court’s ruling that plaintiffs had a valid pre-existing lien on the premises is correct because the purchase price exceeded the value of the homestead exemption and the amount owed by the Kiwazeks on their contract.

A judgment hen extends only to the property right which the debtor holds in the premises, subject to the equities in it at the time of the creation of the hen. (See Sturdyvin v. Ward, 336 Ill. 594, 602-03 (1929); Hooper v. Haas, 332 Ill. 561, 568 (1928); East St. Louis Lumber Co. v. Schnipper, 310 Ill. 150, 156 (1923); In re Application of Klock, 10 Ill. App. 3d 752, 754 (1973).) A judgment lien can attach to the interest of a purchaser under an executory contract for the sale of real estate. (Gorham v. Farson, 119 Ill. 425, 439 (1887).) Once a judgment lien has been properly created and attached to the judgment debtor’s interest in real property, the debtor may not impair or defeat the hen by conveying the property to the third party, and the judgment creditor may subject the property to sale in satisfaction of his judgment in the manner provided in the statutes. See, e.g., Ill. Rev. Stat. 1971, ch. 77, par. 1 et seq.; ch. 52, par. 1 et seq. See Tinney v. Wolston, 41 Ill. 215, 219-20 (1866); Moriarty v. Galt, 112 Ill. 373, 377 (1884); Skach v. Heakin, 28 Ill. App. 3d 346, 351 (1975).

However, the hen of judgment does not attach to the judgment debtor’s homestead. (Petition of Lehman v. Cottrell, 298 Ill. App. 434 (1939).) The interest of a purchaser in possession of property under an executory contract for sale is sufficient to entitle the purchaser to claim an estate of homestead if he meets the other requirements of section 1 of the Homestead Act (Ill. Rev. Stat. 1971, ch. 52, par. 1). (Stafford v. Woods, 144 Ill. 203, 209 (1893); Kilmer v. Garlick, 185 Ill. 406, 411-12 (1900).) A judgment debtor whose interest in real estate at the time of a conveyance to a third party is worth less than the statutory amount of the homestead exemption may convey that interest free of the hen of judgment. (Hamalle v. Lebensberger, 267 Ill. 602 (1915); Watson v. Saxer, 102 Ill. 585 (1882); Cloud v. Meyers, 136 Ill. App. 45 (1907).) Abandoning or surrendering possession of property occupied as a homestead pursuant to the conveyance of that property is not an abandonment of the estate of homestead but is an appropriate mode of transferring that estate. (Eldridge v. Pierce, 90 Ill. 474, 482 (1878).) However, if at the time of the conveyance the value of the debtor’s interest exceeds the amount of the homestead estate, the excess is subject to the lien of judgment. (Erlinger v. Freed, 347 Ill. 588, 592 (1932); Hummel v. Villmow, 347 Ill. 58 (1931); Kilmer v. Garlick, 185 Ill. 406 (1900); Moriarty v. Galt, 112 Ill. 373 (1884).) In order to ascertain whether an excess existed at the time of the conveyance to which the judgment lien had attached, it must be determined whether the debtor’s interest in the homestead premises over and above senior encumbrances was in excess of the statutory homestead amount. Morris Investment Co. v. Skeldon 399 Ill. 506, 511 (1948); Erlinger v. Freed, 347 Ill. 588, 592 (1932); Hamalle v. Lebensberger, 267 Ill. 602 (1915); Skach v. Heakin, 28 Ill. App. 3d 346, 351-52 (1975).

Therefore, in order to determine whether the Cochrans have a valid judgment lien which may be enforced against the property now in the hands of the Cutlers, the following must be established: The value of the debtors’ (Kiwazeks’) interest in the premises at the time of the conveyance; the extent to which the premises were encumbered prior to the establishment of the judgment lien; and the statutory amount of the homestead exemption to which the debtors were entitled.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Schindler v. Watson
2017 IL App (2d) 160126 (Appellate Court of Illinois, 2017)
DeCaro v. M. Felix, Inc.
864 N.E.2d 890 (Appellate Court of Illinois, 2007)
Lakeshore Decaro v. M. Felix, Inc.
Appellate Court of Illinois, 2007
MacDONALD, II v. ESTATE Of
469 F.3d 1079 (Seventh Circuit, 2006)
Gayton v. Kovanda
Appellate Court of Illinois, 2006
Great Southern Co. v. Allard
202 B.R. 938 (N.D. Illinois, 1996)
Casey National Bank v. Roan
668 N.E.2d 608 (Appellate Court of Illinois, 1996)
E.J. McKernan Co. v. Gregory
643 N.E.2d 1370 (Appellate Court of Illinois, 1994)
Heritage Federal Credit Union v. Cox (In re Cox)
175 B.R. 266 (C.D. Illinois, 1994)
In Re Jones
166 B.R. 657 (N.D. Illinois, 1994)
In Re Harrison
164 B.R. 611 (N.D. Illinois, 1994)
Prairie Production Credit Ass'n v. Bianucci
600 N.E.2d 523 (Appellate Court of Illinois, 1992)
In Re Cerniglia
137 B.R. 722 (S.D. Illinois, 1992)
FIRST NAT'L BK. & TR. CO. v. Wissmiller
538 N.E.2d 190 (Appellate Court of Illinois, 1989)
First National Bank & Trust Co. v. Wissmiller
538 N.E.2d 190 (Appellate Court of Illinois, 1989)
Butler v. Wilkinson
740 P.2d 1244 (Utah Supreme Court, 1987)
In Re Hockinson
60 B.R. 250 (N.D. Illinois, 1986)
Bank of Illmo v. Simmons
492 N.E.2d 207 (Appellate Court of Illinois, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
350 N.E.2d 59, 39 Ill. App. 3d 602, 1976 Ill. App. LEXIS 2617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cochran-v-cutler-illappct-1976.