Brokaw v. Ogle

• Decision Date: 08 November 1897
• Parties: BROKAW v. OGLE et al.
• Court: Illinois Supreme Court

170 Ill. 115

48 N.E. 394

BROKAW

v.OGLE et al.

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from circuit court, Pike county; Jefferson Orr, Judge.

Bill by Charles Brokaw against Alexander Ogle and others. Decree for defendants. Complainant appeals. Reversed.

Phillips, C. J., dissenting.

Williams & Williams, for appellant.

A. G. Crawford, for appellees.

MAGRUDER, J.

This is a bill for partition filed by appellant on June 20, 1895, and subsequently amended, to which, as originally drawn and as subsequently amended, Alexander Ogle and Hiram Ogle and their wives, and one A. G. Crawford, holding a mortgage upon the premises sought to be partitioned were made parties defendant. The premises were owned in his lifetime by Zachariah Ogle, who died intestate, leaving a widow, Frances Ogle, and four children, to wit, Alexander, Hiram, and Malcolm Ogle, and Nancy J. McMullin, and one grandchild, James E. Fowler, the son of a deceased daughter, who died before her father. Alexander and Hiram Ogle purchased the interests of the other heirs, so that each owned an undivided half, subject to the dower and homestead of the widow. Complainant levied upon the undivided half owned by Alexander Ogle under a judgment against Alexander Ogle, and obtained a sheriff's deed thereto. The court below dismissed the bill, finding that the premises were Alexander Ogle's homestead, and that, as no proceedings were taken to set off the homestead, the execution sale was void, and complainant was not entitled to partition. The present appeal is prosecuted from such decree of dismissal.

The farm in question consisted of 160 acres. When Zachariah Ogle, who owned the feesimple title to it, died, on December 14, 1888, he occupied the house upon it as a residence. The house so occupied by him was upon the west half of the farm. Before and at his death he was a householder, and had a family, and was entitled to an estate of homestead to the extent in value of $1,000 in the farm and building thereon. His homestead and all right and title therein were exempt from attachment, judgment, etc., as provided in section 1 of the exemption act (2 Starr & C. Ann. St. [2d Ed.] p. 1865). Frances Ogle, the wife of Zachariah Ogle, survived him, and continued to live in the house upon the west half of the farm. ‘Such exemption’ continued after the death of her husband for the benefit of herself, as long as she continued to occupy the homestead, and of her children, until the youngest child became 21 years of age, in accordance with the provisions of section 2 of the homestead act (2 Starr & C. Ann. St. [2d Ed.] p. 1871). It appears that in October, 1891, all of her children and her grandson were of age. At that time Malcolm Ogle, her youngest son, and James E. Fowler, her grandson, conveyed their two-fifths interest in the farm to their older brothers, Alexander Ogle and Hiram Ogle. On May 29, 1893, her daugter, Nancy J. McMullin, conveyed her one-fifth interest to said Alexander and Hiram. At the latter date Alexander Ogle and Hiram Ogle owned the whole farm,-each an undivided one-half thereof,-subject to the mortgage thereon, dated May 21, 1893, for $950, drawing 7 per cent. interest, executed by them to one Crawford, and subject to the dower of the widow, Frances Ogle, and to her right of homestead. On May 29, 1893, Mrs. McMullin, who had a husband and family, lived in her own home, and not with her mother. Hiram Ogle lived with his family in a house upon the east half of the farm. Whether this house was built before his father's death, or thereafter, does not appear; but he lived there in pursuance of an oral agreement for partition between himself and his brother Alexander, by the terms of which he was to take the east half, and Alexander the west half, of the farm. The right of Alexander to the west half was subject, however, to the right of occupancy thereof by his mother as long as she lived. Alexander Ogle, in 1893, and for some years prior thereto, cultivated a farm in what is called ‘Sny Bottom,’ about eight miles from the home farm above referred to. This farm he did not own, but had leased it from the owner thereof. He lived upon it with his wife and children most of the time, although he also lived with his mother in the house upon the west half of the home farm a part of the time. Malcolm Ogle was a single man, and lived in the same house with his mother a portion of the time before her death, which occurred on April 10, 1894, but just when he lived there is not shown by the evidence. It is clear, however, that he did not live there while the premises were in the occupancy of one Frank Black, a tenant of the widow Frances Ogle, as hereafter stated. The appellant obtained a judgment against Alexander Ogle for $116, before a justice of the peace, on June 16, 1893; and after execution returned nulla bona a transcript was filed in the circuit court of Pike county on December 11, 1893, and an execution was issued and levied upon the undivided one-half interest of said Alexander Ogle in said farm. The premises so levied upon were sold by the sheriff on February 24, 1894, for $145.45, under the execution aforesaid, to the appellant, and, not having been redeemed from such sale within the statutory period, were conveyed to appellant by sheriff's deed dated May 27, 1895. Appellant seeks partition, as being the owner of an undivided one-half of the premises in question by virtue of his sheriff's deed. Appellee Alexander Ogle claims that the sheriff's sale was void, upon the alleged ground that when the transcript from the justice of the peace was filed in the circuit court, and when the levy and sale were made, he was occupying the premises as his homestead, and said premises were worth less than $1,000. No steps were here taken to set off the homestead in the manner prescribed by the statute.

A sale on execution of the homestead of the judgment debtor, without observing the requirements of the statute in that behalf, is void, so as to convey no title capable of being asserted in a court of law. Bullen v. Dawson, 139 Ill. 633, 29 N. E. 1038, and cases there cited. Where the homestead premises are not worth more than $1,000, a judgment against the owner is no lien upon them; and when the debtor sells them the purchaser takes them, to that extent, free from all judgment liens. The debtor's homestead, to the extent of $1,000 in value, is exempt from levy and forced sale. Asher v. Mitchell, 92 Ill. 480;Leupold v. Krause, 95 Ill. 440;Halliday v. Hess, 147 Ill. 588, 35 N. E. 380;Bach v. May, 163 Ill. 547, 45 N. E. 248. The testimony is not altogether clear as to the value of the interest levied upon. Alexander and Hiram Ogle paid about $900 for the three-fifths interest purchased by them in 1891 and 1893; that is to say, about $300 for each one-fifth. No other proof of value appears in the record. At these figures, the value of the whole farm would not be over $1,500, and after deducting the mortgage of $950 and interest the undivided half levied upon would be worth only about $500; and counsel for appellees estimate the value of the whole premises upon the basis of the amounts at which these purchases were made. There is a conflict in the authorities upon the question whether there can be a homestead in an undivided interest in land, or, in other words, whether an estate in co-tenancy will support a right of homestead in one of the co-tenants, or whether homestead can only exist in an estate in severalty. Thomp. Homest. & Ex. §§ 180-189; Wap. Homest. pp. 134-138. We are inclined to the opinion that an undivided interest, accompanied by exclusive possession, will support the homestead right. Herdman v. Cooper, 29 Ill. App. 589;Kaser v. Haas, 27 Minn. 406, 7 N. W. 824; Freem. Co-Ten. § [170 Ill. 122]54; Thomp. Homest. & Ex. § 181. The objection usually urged against allowing a homestead estate to attach to an undivided interest is that in setting off the homestead the rights of the co-tenants may be interfered with, and the particular part set off as homestead might on partition fall to one of the other co-tenants. But this is a matter of which the other co-tenants alone can complain, and, if their rights are respected, persons who are not co-tenants cannot object. The object is to protect the portion set off from judgment levies and sales, and not to give an assured title thereto. The co-tenant of the claimant of a homestead cannot question the latter's ‘right to acquire a homestead interest in the property, so long as such co-tenant is allowed to enjoy all his rights and privileges in and to said property as a co-tenant.’ Tarrant v. Swain, 15 Kan. 149. We do not, therefore, regard the fact that Alexander Ogle's interest in the farm was an undivided one half thereof as militating against his claim to a homestead, if in other respects his right thereto is established. Especially is this so in view of the arrangement with his brother Hiram, the owner of the other undivided half, as to a partition which was to give the west half to Alexander and the east half to Hiram. Of this, however, the judgment creditor had no notice.

Nor can it be doubted that, if Alexander did have a homestead, the sheriff's sale of it was absolutely void, it being less in value than $1,000. The question which it has been most difficult for us to decide is the question whether his occupancy of the premises, if he occupied them, was of such a kind as to bring it within the requirements of the statute as to homesteads. It will be noticed that the filing of the transcript, and the levy upon and sale of the property, all took place in the lifetime of his mother, the widow of Zachariah Ogle. The homestead exemption continued for her benefit after her husband's death. It is true that her homestead was never assigned to her by any formal proceeding, but she was permitted by the sons to reside in the house on the west half of the farm, and to receive the rents thereof from the...