Barrett v. Wilson
| Decision Date | 28 March 1882 |
| Citation | 102 Ill. 302,1882 WL 10226 |
| Parties | MARGARET BARRETT et al.v.JOHN WILSON. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Coles county; the Hon. C. B. SMITH, Judge, presiding.
Mr. T. L. MCGRATH, for the appellants.
Messrs. CRAIG & CRAIG, for the appellee. Mr. JUSTICE SCOTT delivered the opinion of the Court:
It is conceded that prior to the 28th day of February, 1876, complainant, John Wilson, was seized and possessed of the premises described in the bill, as of a perfect title. Situated on the premises were two small houses, neither of them of any considerable value. The larger one contained a number of rooms, and the other one was what is called a “shanty.” Both were designed for dwelling places, and were used for that purpose. During the lifetime of his wife complainant resided with her on the premises. It was their homestead. They had no children. Since her death, which occurred in November, 1875, complainant has continued to reside on the premises, but most of the time in the “shanty.”
In 1872, George L. Horn obtained a judgment against complainant before a justice of the peace, on which one or more executions were issued, and returned “no property found.” Afterwards a transcript of that judgment was filed in the office of the clerk of the circuit court of Coles county, in which county the parties resided, and where the property is situated. Under the provisions of the statute an execution was issued on the transcript judgment, which was by the sheriff levied on the lots involved in this litigation. At the sheriff's sale of the property it was bid off by the plaintiff in the execution for the sum of $79.70, being the amount of the judgment and costs. The certificate issued by the sheriff to the purchaser was afterwards assigned in the usual way to defendant Margaret Barrett, and after the time allowed by statute for the redemption of the property had expired, she received a sheriff's deed conveying the property to her. In some way, to be hereafter noticed, Margaret Barrett and her husband obtained possession of the larger house situated on the premises, before the sheriff's deed was in fact made to her, and they have continued to occupy the same up to the time of the decree in this case. The bill was brought by the execution debtor against Margaret Barrett and her husband, to have the sheriff's sale of the property set aside, on the ground it was his homestead, and, under the statute, void as to him. It appears that prior to the date of the issuing of the execution on the transcript judgment, the lots were incumbered by two small mortgages. One of them amounted to $92.72, and the other about $36, although the court found, by its decree, a larger sum was due on it. Both of these mortgages were paid off by Margaret Barrett, or her husband for her. By his bill complainant offered to repay to defendant all she had advanced to remove the liens on the property, after deducting a reasonable rent for that portion of the premises occupied by defendants. On the hearing of the cause the circuit court found the premises were the homestead of complainant, and set aside the execution sale as being inhibited by law, and, on causing an account to be stated between the parties, found there was due to defendant the sum of $100, and decreed that on payment of that sum to her, within ninety days, defendants should surrender the possession of the premises to complainant. Defendants bring the case to this court, and ask a reversal of the decree of the circuit court.
There are only two principal questions that can arise on the record: First, whether the sheriff's sale of the property was void under the Homestead law; and second, if so, is complainant estopped to assert it against defendants.
Concerning the first proposition there can be no doubt. The premises, at the time of the execution sale, were worth much less than $1000, and they were the...
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