Conklin v. Foster

• Decision Date: 30 September 1870
• Citation: 1870 WL 6588,57 Ill. 104
• Parties: JAMES E. CONKLIN et al.v.JOHN H. FOSTER.
• Court: Illinois Supreme Court

57 Ill. 104

1870 WL 6588 (Ill.)

JAMES E. CONKLIN et al.

v.JOHN H. FOSTER.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago.

The opinion states the facts of the case.

Mr. GEORGE SCOVILLE, for the appellants.

Mr. PERKINS BASS, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a bill in chancery, filed in the Superior Court of Chicago, by appellee against appellants. The purpose of the bill was, to enjoin appellants from removing, selling or disposing of a house, therein described, and from letting any person into possession; that the house be decreed to appellee; that appellants surrender the possession to him, and that they be decreed to pay him a reasonable rent, as a compensation for the use of the same.

It appears, from the bill, answer and proofs, that, on the 10th day of March, 1868, appellee was the owner, in fee, of a lot of land in Chicago, and about that time, leased it to one John H. Spencely, for the term of five years, which would have expired on the 10th of March, 1873; that Spencely entered into possession, and erected on the lot a frame house. It appears that he, with his family, remained in the occupancy of the house, until the 28th of April, 1869; that Spencely, with his wife and child, resided in and occupied the house, as a homestead; that, on the 1st day of September, 1868, while Spencely and his family were thus occupying the house and lot, appellants commenced a suit at law against him and another person, and caused an attachment to issue against Spencely's property, and levied the same on the house, but Spencely did not surrender possession to the sheriff, but continued to occupy it as a home for himself and family. That Spencely, on the 25th of September, 1868, still occupying the house, with his family, sold and assigned his interest in the lease to the Chicago and Lyons Stone and Lime Company, for the consideration of $1,280, and the company then became the tenant of and attorned to appellee, and Spencely thereby became the under tenant of the company.

It also appears that on the 28th day of April, 1869, the company sold the house and appurtenances, and surrendered the term to appellee, for the consideration of $875; that Spencely still continued to occupy the house as his homestead; that on the 29th day of April, 1869, the possession of the lot and house was surrendered to appellee, and he entered into the sole and peaceable possession of the same, and so continued until the 6th of the following May, when he leased it to one Thatcher for one year, and he entered into possession.

About the 18th of July, 1869, the sheriff levied an execution, issued on a judgment rendered in the attachment suit, on the house, and Thatcher thereupon left the house, and the sheriff sold it under the execution and levy, to appellants for the sum of $400, and delivered them the possession which they had continued. And appellants had offered to pay a reasonable ground rent, and had said that if appellee refused to accede to reasonable terms they would be compelled to remove the house. It was stipulated that all matters and things alleged in the bill, not specifically denied by the answer, should be taken as true, and it is under this stipulation that a portion of these facts are stated as appearing in the case. On a hearing, the court below granted the relief sought by the bill, and decreed to appellee $282, for rent of the premises while occupied by appellants. To reverse this decree, the record is brought to this court by appeal, and errors are assigned.

Was the house liable to sale on the execution, or was it protected under the homestead law?

In Deere v. Chapman, 25 Ill. 610, it was...