Cipperly v. Charles H. Rhodes Et Ux.

• Decision Date: 31 January 1870
• Citation: 53 Ill. 346,1870 WL 6205
• Parties: HENRY J. CIPPERLY et al.v.CHARLES H. RHODES et ux.
• Court: Illinois Supreme Court

53 Ill. 346

1870 WL 6205 (Ill.)

HENRY J. CIPPERLY et al.

v.CHARLES H. RHODES et ux.

Supreme Court of Illinois.

January Term, 1870.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Macon county; the Hon. A. J. GALLAGHER, Judge, presiding.

This was a suit in chancery, instituted in the court below by Henry J. Cipperly and others, against Charles H. Rhodes and Jennie Rhodes, his wife, to subject a certain house and lot in the city of Decatur, to the payment of a debt owing from Charles H. Rhodes to the complainants, the latter alleging the property was purchased by said Charles H. with his own money, at a time when he was in insolvent circumstances, and procured it to be conveyed to his wife, in fraud of the rights of his creditors. The defendants claimed the benefit of the homestead act of 1851.

The facts connected with the transaction will appear from the finding of the court in its decree, which was as follows:

The court found that Charles H. Rhodes was indebted to complainants, on the sixteenth day of August, 1866, in the sum of two thousand one hundred fifty-four dollars and eighty cents; that on the thirteenth day of February, 1867, complainants obtained judgment in the U. S. Court for Southern District of Illinois, against C. H. Rhodes, for the sum of two thousand and ninety dollars and ninety-two cents. Fi. fa. issued on the judgment twenty-sixth day of same month, directed to the marshal of said district to make amount of said judgment; that John W. Bear, a deputy marshal of said district, about the first day of April, 1867, called on said Rhodes and demanded payment of said execution; that said Rhodes refused payment, or turn out property in satisfaction of the same; that the same was returned into said court nulla bona, and that the judgment remains unsatisfied. The decree shows that the court found further, that on the first day of December, 1866, Charles H. Rhodes purchased of Jane and Thomas Hathaway, the property described in the bill, for one thousand four hundred and fifty dollars, and paid said amount of purchase money at the time of making said contract, with his own funds.

That said Charles H. Rhodes caused and procured said Hathaways to make the deed to said property to Jennie Rhodes, his wife; that the same was done on the first day of December, 1866; that on said real estate there is a dwelling house and other improvements, and was worth at the time of said conveyance one thousand eight hundred dollars; that at the time of procuring said conveyance, the said Charles H. Rhodes was and since then is insolvent, and that complainants had no other means of making their debt than out of the property herein described.

The court finds the allegations in amended bill are true; that the equity of the cause is with the complainants, and that there is justly due complainants, at time of entering decree, two thousand and ninety dollars and ninety-two cents, with interest from date of judgment. Ordered, that Charles H. Rhodes pay, within thirty days from date of decree, two thousand and ninety dollars and ninety-two cents, with interest from thirteenth day of February, 1867, and the cost of the suit by said decree. It is further ordered by the court, that in default of such payment, the master in chancery of said court proceed and appraise and set off to defendant, Charles H. Rhodes, a homestead of one thousand dollars out of the real estate described in the bill; the appraisement to be made and homestead set off in the manner provided in the statute by sheriffs upon execution.

The decree then provides that the master, having set off to the defendant, Charles H. Rhodes, a homestead out of the premises, to sell the remainder, not set off, at public sale to the highest bidder, for cash, at door of court house in Decatur, in said county, after publishing due notice; that he issue to the purchaser a certificate of sale, and apply proceeds of sale to discharging costs and meet payment of debt of complainants; if not redeemed from in fifteen months, to make sufficient deed of conveyance.

A question is made in regard to the abandonment of the premises as a homestead, after the purchase. It being shown that the defendants were absent in the State of Indiana, for some time, they explained their absence, through the testimony of Charles H. Rhodes, as follows: he testified that he was a married man, had a wife and family, and lived with his family on the premises in the bill described, occupying the house with his family, and had occupied it as a...