Zander v. Scott

46 N.E. 2, 165 Ill. 51

• Court: Illinois Supreme Court
• Decided: January 19, 1897
• Status: Published

Opinion

Mr. Justice Wilkin

delivered the opinion of the court:

Three grounds of reversal are urged: First, it does not appear from the affidavit on which the motion was based that the premises were occupied by Mrs. Scott as a residence at the time the judgment became a lien upon the same; second, the wife’s real estate is not exempt from sale for payment of her debts, though occupied by herself, husband and children as a home; and third, the homestead right, if any existed, was waived.

The judgment was rendered October 16, 1895, the sale made on the 26th of the next month, and the affidavit and motion to vacate the sale were not filed until February 5 following,—three and a half months after the judgment became a lien. The language of the affidavit, as above shown, is, “that said lot of land and buildings thereon are occupied by appellant as her residence and constitute the homestead of appellant and her family; that her husband is living, and he, together with the affiant and her seven children, occupy said premises as their homestead and the same is the family residence.” All these expressions as to occupancy are in the present tense, and the affidavit wholly fails to show that the premises were at any time so occupied previously to making the affidavit and motion. It is therefore not shown that they were so occupied when the judgment became a lien nor even when the sale was made. In Reinbach v. Walter, 27 Ill. 393, in which case the defendant attempted to set up homestead rights against an action of ejectment, it was said:. “As the defendant did not prove that any portion of the premises were his homestead at the time the judgment was rendered and when the lien attached, the law has no application. The proof is, that it was his homestead at the time of the sheriff’s sale. He may have moved upon the premises but the week before.” To the same effect are Tourville v. Pierson, 39 Ill. 446, Chappell v. Spire, 106 id. 472, and Rock v. Haas, 110 id. 528. Indeed, it seems clear, upon principle, that in the absence of some express provision of the statute the right of exemption from execution sale, in order to be availed of, must exist at the time the lien attaches.

We do not think either of the other positions assumed can be maintained, but as the judgment of the court below must be reversed for the reasons stated, it will be unnecessary to discuss them at length. As to the contention that the real estate of the wife is not exempt from sale for payment of her debts, we think the law is otherwise. The language of section 1 of the statute entitled “Exemptions” is, 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.” We see no reason why-a wife, though living with her husband, may not be considered a householder under this provision. The statute does not make it necessary that the party claiming the exemption should be the head of a family. It is sufficient that he or she be a “householder having a family.”

The homestead right was not waived merely because it was not claimed before the sale. Imhoff v. Lipe, 162 Ill. 282.

The judgment will be reversed and the cause will be remanded, with directions to the Superior Court to overrule the motion.

Reversed and remanded.