198 N.E. 723 | Ill. | 1935
Lead Opinion
The appellee, F.A. Holterman, brought a forcible entry and detainer action in the circuit court of Douglas county against A. A. Poynter and Aveyrilla Poynter, his wife. In that suit defendants filed a plea setting up that the real estate involved had been sold under execution; that it was their homestead and worth less than $1000, and that the sheriff's deed made pursuant to the sale was void. Holterman then filed a bill in chancery to restrain the Poynters from asserting that defense. The prayer of the bill was not only that appellants be enjoined but that Holterman be decreed to be entitled to the possession of the land. The master's report was favorable to Holterman and the decree granted the relief prayed. Poynter and wife have appealed to this court.
The premises consist of a house and lot in the city of Arcola, in Douglas county. The title was in Mrs. Poynter. On March 27, 1931, Holterman obtained a judgment by confession against appellants in the circuit court of Coles county for $526.81. An execution was issued and appellants filed a schedule of their personal property. No levy was made upon any property in Coles county. A transcript *619 of the judgment was filed in the office of the clerk of the circuit court of Douglas county. An execution was issued out of that office on May 4, 1931, and a levy was made on the real estate. On June 4 the premises were sold at sheriff's sale and Holterman became the purchaser. No homestead was set off to appellants. The Poynters did not redeem within the period allowed by statute and a sheriff's deed was issued to Holterman September 6, 1932.
The proof shows the value of the property to be less than $1000. Appellants and their two sons occupied it from November 18, 1928, until March 1, 1930, when they moved to a Coles county farm in which Mrs. Poynter had a life estate. They left a part of their household goods in a closed room of the house in Douglas county and rented the remainder of the premises to Ray Black. He moved in on March 18, 1930, and lived there until December 9, 1931. Before March 1, 1932, appellants returned to the premises, which they now occupy.
Appellants testified that when they moved to the farm they did not intend to leave the Arcola home permanently but intended to keep it as their home and return to it. Lucy Black, David Shelby, Gilbert Basham and appellants' son, Everett Poynter, testified to conversations with appellants before the levy and sale in which they made similar statements. John Eisle, police magistrate in Arcola, A.A. Poynter, and Edward Poynter, another son, testified that on May 9, 1931, Holterman and his attorney told Poynter, in Eisle's office, that he had a judgment in Coles county and would levy on the Arcola property, and that Poynter told them they could not do that because of his homestead right in it. Edward Poynter testified that a similar conversation took place at the farm between his father and appellee. Holterman testified that no claim of homestead was ever made to him before the sale. His attorney testified that nothing was said in his presence in Eisle's office about a homestead. *620
Attorney Robert F. Cotton represented appellants prior to the sale. He testified that before the levy was made on the Arcola property he had a conversation with appellants; that they desired to procure a loan on the property; that there was a question as to how long a time they could get; that they did not want any sale made at that time and wanted to put it off; that he advised them that Holterman could be required to proceed against real estate before levying on personal property, and that they would have twelve months and their creditors three additional months in which to redeem the real estate after its sale. He also said appellants told him that was what they wanted done; that they authorized him to require the sheriff to proceed against the real estate, and that they made no claim to him of any homestead rights in the property. He said that he called on the sheriff the next morning and told him of the directions he had received from his clients and tendered the Arcola property to the sheriff for sale under the execution. The sheriff replied that it would be a more expensive route, but Cotton said, "It was the way they would have to go." A.A. Poynter testified that he asked Cotton if they had a homestead right in the property, and that he replied he did not think they had. Poynter also said they did not authorize anybody to tender the Arcola property to the sheriff. He testified further that he told Cotton they claimed a homestead in the premises.
Both appellants voted at a township election in Coles county held on April 5, 1932. One of the judges of the election testified that their right to vote was questioned, whereupon Poynter said his wife had moved to Arcola to send his children to school; that he was residing on the farm in Humboldt township, and that he still had that for his voting place and it was his home. One of the clerks of the election testified to the same effect. Poynter denied making these statements, and testified that he told the clerk *621 of the election that he lived in Arcola and did not live in Coles county.
Holterman and his attorney testified they never heard of any claim of homestead until they attempted to obtain possession of the property, and that in causing the sale they relied upon the tender to the sheriff made by appellants' attorney. Holterman paid two years' taxes on the property, amounting to $92.25, costs of about $50, and has kept the house insured for $600. He testified that he would re-convey the property upon being reimbursed for the amount of his debt, interest, costs and taxes.
Upon the hearing the chancellor found that appellants were not occupying the premises when the transcript was filed nor when the sale was made; that prior thereto they occupied the premises as a homestead; that they moved to the farm, leaving a portion of their household goods in the residence; that there was no abandonment of their homestead in the premises, but that they authorized their attorney to tender the property for sale under the execution and were thereby estopped from claiming their homestead exemption.
As grounds for reversal appellants urge that there are only two methods by which a homestead estate can be extinguished — i. e., by a conveyance in writing acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or by abandonment; that appellants were under no duty to manifest any intention to avail themselves of the benefit of the Homestead Exemption law; that the premises were exempt, and under the doctrine of caveat emptor appellee took nothing by the sale. On the other hand, appellee claims that appellants' tender of the property estops them from claiming their exemption and amounted to an abandonment of their homestead rights.
Two questions are presented by this appeal: First, was there an abandonment of the homestead by appellants? and *622
second, are appellants estopped to claim a homestead? On the question of whether there was an abandonment the decision inImhoff v. Lipe,
There is much conflict in the testimony as to certain conversations with Robert F. Cotton, who was appellants' attorney before the sale. It is improbable that appellants would empower him to direct the sheriff to sell the Arcola property if they were anxious to make a loan, pay the debt and thus save their home, when they could have prevented any sale by the assertion of their homestead rights. They were under no duty to act and could stand by and require appellee to follow the law and not molest their homestead. For the purposes of this decision we are assuming that the testimony of Cotton is correct, and yet we are of the opinion that there can be no estoppel. He testified that he was only directed to require the sheriff to levy first on the real estate. Appellee contends that by this action appellants are estopped from claiming their homestead. In support of this he relies upon section 11 of "An act in regard to judgments and decrees," etc., in force July 1, 1872, as subsequently amended. (Cahill's Stat. 1933, p. 1710; Smith's Stat. 1933, p. 1732.) It provides: "The person in whose favor execution is issued, may elect on what property not exempt from execution he will have the same levied, provided *624
personal property shall be last taken." We have held that this provision is for the benefit of the judgment debtor and he may waive any right to it. (Bingham v. Maxcy,
The rules laid down for the guidance of a creditor or any other person dealing with land in which a homestead may exist, at page 285 in Imhoff v. Lipe,
Speaking through Justice Scholfield, in Gruhn v. Richardson,
The principal object to be effectuated by the creation of the homestead estate is to protect the householder and *626
his family in the enjoyment of a home and to secure them a shelter beyond the reach of his improvidence or financial misfortune. Considerations of sound public policy affecting the general interest were involved in and contributed to the enactment of the statute by which the estate is created. The estate of homestead is created by section 1 of the statute on homestead, and section 4 provides that it may be extinguished only by an instrument which shall be acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or by abandonment. Section 27 of the Conveyance act, which provides that in order to be effectual to convey or encumber the homestead estate the instrument executed to accomplish either purpose must contain a clause in the body thereof, and also in the certificate of acknowledgment, expressly releasing or waiving such estate. We have held that this section must be strictly followed. In Ogden Building Ass'n
v. Mensch,
The chancellor was correct in finding that there was no abandonment of the homestead of appellants but erred in finding that appellants were estopped from claiming it because of directions to the sheriff to sell the real estate first.
It is not necessary to determine whether appellants' communications to their attorney, Cotton, were privileged.
For the reasons indicated, the decree of the circuit court of Douglas county is reversed and the cause is remanded to that court, with directions to dismiss the bill of appellee for want of equity.
Reversed and remanded, with directions.
Mr. JUSTICE HERRICK took no part in this decision.
Dissenting Opinion
The master reported a finding, which the chancellor approved, to the effect that appellants were estopped to claim a homestead because they had directed the sheriff to levy upon and sell the real estate in satisfaction of appellee's judgment. It was also found that subsequent to the sale *628 appellee had paid two years' taxes on the premises, together with about $50 in costs which accrued because of the sheriff's sale.
The majority opinion appears to hold that if a homestead has not been abandoned, or if it has not been waived in strict accordance with the provisions of the statute, no circumstances whatever can exist which will prevent a claim of homestead. In other words, it tacitly holds that the doctrine of estoppelin pais can never be invoked against a claim of homestead, and the doctrine of caveat emptor applies in this case. With the two last mentioned conclusions we are in utter disagreement. If, as was found by the chancellor, appellants directed the sheriff to sell their real estate in preference to their personal property, and appellee became the purchaser and afterwards paid out a considerable sum of money in taxes and costs, an estoppel in pais arose, which ought to bar appellants from asserting a claim of homestead.
The act pertaining to judgments, decrees and executions (Cahill's Stat. 1933, chap. 77, sec. 11,) provides: "The person in whose favor execution is issued, may elect on what property not exempt from execution he will have the same levied, provided personal property shall be last taken." It will be observed that appellants had no right of election except as to property not exempt. Their act in electing to turn the real estate out in preference to their personal property in satisfaction of the judgment debt must be treated as a confirmation of their previous declarations of abandonment of the homestead. Any other interpretation, it seems to us, would sanction the perpetration of a fraud upon appellee, and would, in the language of Cabeen v. Mulligan,
A debtor may always waive his privilege and consent that his exempted property may be applied to the payment of his debts. (Jensen v. Cannell,
Wilson v. Daniels,
In Maring v. Meeker,
Where one by his words or conduct willfully causes another to believe in the existence of a certain state of things and induces him to act upon that belief so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the time. Niantic Bank v. Dennis,
It is to be remembered that a homestead right is not the only right which the courts regard, and there are rules of law which they will not overturn merely because they are urged to do so in the name of homestead protection. *631
(Brown v. Coon,
An estoppel in pais affecting permanent interests in land can only be made available in a court of equity. It cannot be allowed in an action of forcible detainer. (St. Louis StockYards v. Wiggins Ferry Co.
We think the decree of the circuit court should be affirmed. *632