58 Ill. 425 | Ill. | 1871
delivered the opinion of the Court:
This was a- bill in equity, filed by the defendant in error on the 4th day of September, 1867, against the plaintiffs in error, to set aside a sale on execution against him of the west half of lot number 3 in an addition to the town of Ridge Farm, as being his homestead. On the 19th day of August, 1858, the execution ivas levied on the premises, which were sold to the plaintiffs in error, and the sheriff’s deed made to them February 15 th, 1860.
The whole lot 3 was 60 by 120 feet. The dwelling house of the debtor was mostly on the east half of the lot; about 4 feet of it, and 7 feet of the smoke house were on the west half, as also the garden, fruit trees and well. There was a store house 20 by 45 feet on the west half, which set back 6 or 8 feet from the end, which was in the occupancy of a tenant. The Avhole lot did not exceed in value $1000.
In July, 1867, the plaintiffs in error, in an action of forcible detainer against one Darnall, the tenant of Canady occupying the store house, recovered the possession of the store house, .and Darnall has ever since held it as their tenant.
The points made by the plaintiffs in error are, fhat the store house Avas not part of the homestead ; that Canady is bound by the judgment recovered against his tenant, and that the delay in filing the bill sIioavs such laches as will prevent the court from entertaining it.
Reinbach v. Walter, 27 Ill. 393, is cited in support of the position that this store house Avas not a part of the homestead. That A\ras a case of tAvo lots not exceeding, together, $1000 in value; the homestead law was held not to apply, but the court said, if it did, they should be inclined to hold that the store and Avarehouse, and' the grounds used for the business done in them, did not constitute a part of the homestead.
But here is only one lot of ground, 60 by 120 feet. The .homestead exemption, as given by the statute, embraces “ the lot of ground and the buildings thereon, occupied as a residence, and owned by the debtor, being a householder, and having a family, to the value of $1000. ”
The whole lot of ground is covered by the exemption, not some part of it, and the lot included all the buildings upon it.
We are not to regard the intention of the legislature as being only to save a mere shelter for the debtor and his family, but that it was the purpose to give him the full enjoyment of the whole lot of ground exempted, to be used in whatever way he might think best for the occupancy and support of his family, whether in the way of cultivating it, or by the erection and use of buildings upon it, either for the carrying on of his own business, or for deriving income in the way of rent.
We can not accede to that narrow construction of the statute which would take away this store house, as not being a part of the homestead.
As to the effect of the recovery of possession of the store house by judgment against Darnall, whether the rule laid down in Oetgen v. Ross et al. 47 Ill. 142, that judgment against the tenant concludes the landlord, if he had notice of the pend-ency of the suit, holds only in actions of ejectment, and does not prevail in actions of forcible entry and detainer, we shall not stop to consider, as the ordinary rules in regard to laches in parties failing to make their defenses at law, or to bring suit in reasonable time, are not applicable to homestead exemption cases. This court has held that, after a decree of foreclosure, a sale under the decree and conveyance, the mortgagors may, by original bill or otherwise, assert their right of homestead, and have the sale set aside. Mooers et ux. v. Dixon, 35 Ill. 208; id. 256; Moore et ux. v. Titman, 33 Ill. 358.
The law exempts the homestead. The debtor is required to perform no act, to discharge no duty, or even manifest any intention to avail himself of its benefits. Green v. Marks et al. 25 Ill. 221; Pardee v. Lindley, 31 Ill. 174.
But the husband is not the person alone interested in the homestead right. As was said in the case last cited, it is a right cast upon the wife for her benefit and that of her children, of which she and they can not be deprived in any other way than that prescribed by the act itself.
If the homestead right were to be lost by any laches of the husband, such as is set up in this case, in suffering judgment to go against a tenant, or delay in bringing suit to assert the right, then the husband could, indirectly, by such act of omission, effect the alienation of the homestead, when the statute has prescribed that it can only be done by the release of the Avife.
The right can not be lost by such laches of the husband— that can not be imputed to the Avife or children.
This right of homestead is conferred by statute, and can be divested only in the mode provided by the statute. Through a debt incurred for the purchase or improArement of the homestead, or the non-payment of taxes or assessments, or by a removal from and its abandonment as a homestead, the Avife’s right to interpose her claim may be barred • but the husband has no poAver in any other mode to affect the wife’s right. Booker v. Anderson, 35 Ill. 66; Hoskins v. Litchfield et ux. 31 Ill. 137; Pardee v. Lindley, supra.
We think the court did right in setting aside the sale, but it should have gone further, and set aside the satisfaction of the judgment, so far as it Avas satisfied by the sale, and awarded a new execution, as the equitable terms of relief and this Avithout a cross bill. The thing received in satisfaction of the judgment should not have been taken aAvay from the defendants Avithout vacating the satisfaction.
For error in this respect, the cause is remanded for further proceedings, and the court below will modify its decree in conformity hereto. The costs here will be equally divided betAveen the parties.
Decree modified.
