Wike Bros. v. Garner

53 N.E. 613, 179 Ill. 257

• Court: Illinois Supreme Court
• Decided: April 17, 1899
• Status: Published

Opinion

Mr. Justice Craig

delivered the opinion of the court:

This is a writ of error sued out to reverse a decree of the circuit court of Pike county. It appears from the record that plaintiffs in error, John and George Wike, on the 11th day of September, 1893, obtained a judgment before a justice of the peace against defendant in error, Jonathan Garner, for the sum of $153 and costs. On the 16th day of the same month, on the oath of plaintiffs, an execution was issued on the judgment and delivered to a constable. On the 18th day of the same month the execution was returned nulla bona, and on the same day a transcript of the judgment was made out and filed in the office of the clerk of the circuit court. Thereafter, on the 25th day of August, 1894, an execution was issued on the judgment and delivered to the sheriff. The sheriff levied on real estate, which was advertised and sold to plaintiffs in error on the 22d of September, 1894, for the amount of the judgment and costs and the execution was returned satisfied. Upon the expiration of the time allowed by law for redemption, December 24, 1895, the sheriff made plaintiffs.a deed for the land sold. Upon obtaining the deed plaintiffs in error discovered that defendant in error never owned or had any title to the land which had been sold. Thereupon they filed this bill to vacate the satisfaction of their judgment and to enjoin the defendant in error from selling a certain house and lot in the town of ElDara, which it was alleged he owned, and to subject the property to sale in payment of the judgment.

The defendant answered, denying the allegations of the bill and alleging “that the deed to such property was taken in his name together with that of his sister, Susan Garner, and the said property was paid for by him and the said Susan Garner, and was bought by them with the intention and for the purpose of using the same as and for a home for him, the defendant, and his sister Susan Garner and his sister Emma Garner, who then was and for a long time prior thereto had been and now is a distracted person and dependent upon him for care and support, and he, together with the two sisters aforesaid, as soon thereafter as a house could be erected upon the premises, did occupy the same as, a home, and since then have and now do occupy the same, which said above described property does not exceed in value $1000; that he is the head of the family, consisting" of himself and his sisters, Susan and Emma Garner aforesaid, and that they, the said sisters, now are, and since, to-wit, November 20, 1889, (at which time his father died,) have been dependent upon him for support, and he has since that time supported them and taken upon himself the duty so to support and care for them.”

On the hearing the defendant in error testified as follows : “I am post-master at El Dara. I am thirty-three years of age. Parents are not living. Father died in 1889 and mother in 1896. I live with two sisters. One sister is a year older than myself—a distracted person. Has been since she was fifteen years of age. My other sister is thirty years old and she keeps house for us. We have lived together since mother died, and I have supported and cared for the two girls since that time. I bear all the expenses. I own no property at El Dara except the house and lot—the same property described in the bill. I bought the property in June of this year (1897). The title to the property is in myself and sister Susan. That is the sister that is not distracted. We proceeded to build a residence at once. We moved into the residence and now occupy it. We bought the lot for a home. The house and lot was §600. Paid §130 for the lot. The building cost" about §450. I claim to be the head of the family and to occupy the house as a homestead.” On cross-examination the witness further testified that at the time the injunction was served he had contracted to sell the place for'§650 and intended to invest the money in another home. The testimony of this witness was not contradicted nor were the facts disclosed by him controverted.

Among other facts found by the court and incorporated in the final decree are the following: “The court further finds that the said Jonathan Garner and his sister, Susan Garner, purchased said property and erected a residence thereon for the purpose and with the intention of making the same a homestead; that he is a single man, residing with a family consisting of two sisters, and that he is the head of the same. The court further finds that at the time of service of the writ of injunction herein and the commencement of this suit said property was the homestead of the defendant, and that the same was exempt from execution and sale, and that the same was not subject to the lien of any judgment obtained by complainants, and that the injunction should be dissolved.”

Three questions are raised in the argument of counsel for plaintiffs in error: First, will the undivided interest of the defendant, under the circumstances of the case, support a homestead right; second, will the mere intention to occupy property as a homestead, not carried into effect by subsequent actual occupancy, support a homestead right; and third, will the homestead right attach by the voluntary act of the claimant moving into and occupying the property and claiming the same as a homestead, pending the injunction proceedings.

Section 1 of the Homestead act provides “that every householder having a family shall be entitled to an estate of homestead, to the extent in value of $1000, in the farm or lot of land and buildings thereon owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence.” In Holnback v. Wilson, 159 —. 148, in considering the question who might be regarded as a householder, we said (p. 154): “A bachelor or a widower who occupies a home, as the head of a family, on land which he desires to set apart as a homestead, who has living with him a mother, father, sisters or brothers who are dependent upon him for support, and where there is a corresponding duty of support resting on him, might properly be regarded as a householder having a family, within the meaning of the statute.” The defendant in error, Jonathan Garner, occupied a house with two sisters. He and they constituted the family. He, as appears from the evidence, was the head of the family anjl the two sisters were supported by him. We think, therefore, under the facts as they appeared in evidence, the defendant in error was a householder having a family, within the meaning of the statute.

By purchasing the lot which plaintiffs in error seek to subject to the payment of their debt against Jonathan Garner, it is apparent that if he had taken the title in his own name he would be entitled to claim the benefit of the Homestead Exemption act. But the title to the lot was conveyed to Jonathan Garner and Susan Garner, his sister, and it is claimed that as Jonathan Garner held only an undivided one-half interest in the property he could not claim the benefit of the Homestead act. This question arose in Brokaw v. Ogle, 170 Ill. 115, and it was there held that an undivided interest in land, accompanied by exclusive possession, will support a right of homestead in one of the co-tenants. Here Jonathan Garner was in the undisputed possession of the entire property. While Susan Garner owns the fee to an undivided half of the lot, she accords to Jonathan Garner the sole possession, management and control of the property. The statute does not require the householder to own the fee to enable him to claim the benefit of the Homestead act. On the contrary, the statute expressly provides that the householder shall be entitled to an estate of homestead in the property owned or rightly possessed, by lease or otherwise. Under this statute, if defendant in error owned an undivided half and had a lease of the other half, no reason is perceived why he might not claim the benefit of the statute,—and that was, in effect, his position, as he owned one-half and occupied the whole property with the consent and agreement of the owner of the other half, and she in turn received her support. Indeed, we are inclined to the opinion that where a householder is in the exclusive possession of a lot of land occupied by him as a residence it does not concern the judgment creditor whether such householder possesses the fee, an estate for life or for years, or what title he may have. Here the controversy is solely between plaintiffs in error, as judgment creditors, and defendant in error, and as against his judgment creditors defendant in error is entitled to claim the exemption of the statute.

It is next claimed that there was a mere intention to occupy the property as a homestead, which was abandoned, and hence no right of homestead existed in favor of the defendant in error. The evidence shows that the defendant in error purchased the lot for a home and that he proceeded at once to erect a house thereon for a residence. When the house was about completed defendant in error had an offer for the place, and concluded to sell and invest the money in another place, but after the bill was filed he abandoned the sale and moved into the house, and since that time occupied it as a homestead. We do not think the fact that the defendant in error made up his mind to sell the property but did not consummate the sale deprived him of the right, when he saw proper to move in and occupy the property as a residence, to claim it as a homestead. The property was worth less than $1000, and if the lot was purchased and the house erected for a residence, and was followed by actual occupancy by defendant in error without unreasonable delay, as the evidence shows was the case, it was not liable to be seized and sold by plaintiffs in error on any judgment or decree they might obtain. Where a person buys a lot for a home, as was the case here, and erects a house on the lot, a creditor cannot acquire a lien on the property, if, within a reasonable time, the purchaser moves on the property and occupies it as a homestead. The rule laid down in Crawford v. Richeson, 101 Ill. 351, applies here.

It is finally claimed that defendant in error, by moving into and occupying the property claiming it as a homestead, could not defeat the intervening rights of plaintiffs in error,—in other words, it is claimed that defendant in error could acquire no rights by moving in the property after the bill was filed. The bill was filed to enjoin defendant in error from selling the property, but he was not enjoined from moving into the property or using it as he might desire. When the bill was filed plaintiffs in error had no lien on the property. Indeed, they had no judgment against defendant in error. Their judgment had been satisfied, and one object of the bill was to vacate the satisfaction and reverse the judgment. Plaintiffs in error, so far as the property was concerned, had no intervening rights to be defeated. Section 1 of chapter 77 of the Revised Statutes provides “that a judgment of a court of record shall be a lien on the real estate of the person against whom it is obtained, situated within the county for which the court is held, from the time the same is rendered or revived, for the period of seven years, and no longer.” It will be observed that the court, by its decree, did not cancel or set aside the satisfaction of the judgment, but entered a money decree and directed execution to issue. Under such circumstances, as is suggested in argument of defendant, the rights of plaintiffs in error to subject any property of the defendant to the payment of their demand dates from the time their decree was rendered, which was July 2, 1898. When the decree was rendered, and for a long time previous to that date, defendant in error was occupying the house and lot in question as a homestead.

We think the court properly held that the property in question was the homestead of the defendant in error, and the decree will be affirmed.

Decree affirmed.