Darby v. Dixon

• Decision Date: 30 June 1879
• Parties: HENRY H. DARBYv.WILLIAM H. DIXON.
• Court: United States Appellate Court of Illinois

4 Ill.App. 187

4 Bradw. 187

HENRY H. DARBY

v.WILLIAM H. DIXON.

Appellate Court of Illinois, Second District.

June Term, 1879.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Peoria county; the Hon. J. W. COCHRAN, Judge, presiding. Opinion filed July 16, 1879.

Messrs. HOPKINS & MORRON and Messrs. COOPER & TENNERY, for plaintiff in error; that after a judgment has been rendered and the term has passed, the court has no jurisdiction to make a substantial alteration therein at a subsequent term, cited Morgan v. Hays, Breese 126; Cook v. Wood, 24 Ill, 295; Cox v. Brackett, 41 Ill. 222; McKindley v. Buck, 43 Ill. 488; Windett v. Hamilton, 52 Ill. 180; Knox v. Winsted Savings Bank 57 Ill. 330; T. P. & W. R'y Co. v. Eastburn, 79 Ill. 140; Robinson v. Brown, 82 Ill. 279.

A homestead may be claimed in two several tracts of land: Pardee v. Lindley, 31 Ill. 186; Walters v. The People, 18 Ill. 199; Thornton v. Boyden, 31 Ill. 200; Reinbach v. Walter, 27 Ill. 393; Newman v. Willetts, 78 Ill. 397.

Exemption laws should be liberally construed: Deere v. Chapman, 25 Ill. 610.

Though the sale under the trust deed may have been made in the absence of the trustee, it was subsequently ratified by him, and is valid: Nixon v. Cobleigh, 52 Ill. 387.

A court of equity has jurisdiction in such cases: Rev. Stat. 1874, 204; Christie v. Hale, 46 Ill. 117; Bennett v. McFadden, 61 Ill. 334; Green v. Marks, 25 Ill. 221.

Messrs. CRATTY BROS. & ULRICH, for defendant in error: that the, bill should have prayed to have set aside only so much as the court should find to be a homestead, cited Loomis v. Gerson, 62 Ill. 11.

There was a complete remedy at law: Hay v. Baugh, 77 Ill. 500.

The decree not being final, it could be changed at a subsequent term: Morgan v. Sherwood, 53 Ill. 171; Perkins v. Forniquet, 6 How. 206; Forniquet v. Perkins, 16 How. 82; Nat. Ins. Co. v. Chamber of Commerce, 69 Ill. 22.

The Statute exempts only the tract occupied as a homestead and for this purpose the court will take judicial notice of the lines of governmental surveys: Aldrich v. Thurston, 71 Ill. 324; Hay v. Baugh, 77 Ill. 500; Reinbach v. Walter, 27 Ill. 393; Tourville v. Pierson, 39 Ill. 446; Hill v. Bacon, 43 Ill. 477; Hubbell v. Canady, 58 Ill. 425; Gardner v. Eberhart, 82 Ill. 316; Kerr v. South Park Com's, 11 Chicago Legal News, 17; Linton v. Quimby, 57 Ill. 271.

PILLSBURY, P. J.

On the 17th day of October, A. D. 1873, the plaintiff in error, was the owner of the southeast quarter of the southwest quarter and fifteen acres off the west end of the south half of the southeast quarter of section twenty-eight, in township ten, north range five, east, in Peoria county, containing fifty-five acres, and was living thereon with his family. These premises were subject to certain trust deeds before that time executed by him and wife, with waiver of homestead. On the date above named, the defendant in error recovered a judgment in the Peoria Circuit Court against plaintiff in error for $864.43 and costs, and in November following, caused execution to issue, which was returned unsatisfied. In October 1877, a sale was had under the trust deed upon the forty acre tract and all of the forty sold except one-half acre in the southeast corner upon which was situated the dwelling house of plaintiff in error, and three acres was likewise sold off the east side of the fifteen-acre tract under the trust deed thereon.

All the barns, sheds, yards, etc., of plaintiff in error were situated upon the fifteen-acre tract and adjoining his residence. The half acre, together with the residence and other improvements thereon, were worth far less than $1,000 at the time of the levy of the execution hereafter stated, upon the fifteen-acre tract.

On the 25th day of May 1877, the defendant in error caused execution to issue upon his judgment and placed in the hands of the sheriff, who, without notifying plaintiff in error, levied the same upon the fifteen-acre tract, also upon the S. W. N. W. 6, T. 9, R. 6, and N. E. N. W. 33, T. 10, R. 5, and sold all of said tracts to the defendant in error on the 25th day of June following the levy.

Plaintiff in error, having no notice of the levy and sale until long after the same occurred, on the 22d day of November, 1877, exhibited his bill in equity in the Peoria Circuit Court, setting forth the above facts, and that he was entitled to a homestead in that portion of the fifteen-acre tract left him after the sale under the trust deed, being about twelve acres, and asking that the sale under the execution might be set aside, the certificate of sale canceled, and that in the meantime the defendant Dixon be enjoined from transferring such certificate.

Dixon answered the bill, and the cause was heard at the May term, 1878, of said court, when a decree was rendered, finding that the plaintiff in error was entitled to a homestead in both of said tracts of land, to the extent of $1,000, and appointing commissioners to set off the same to him and report their doings to the court.

At the October term, the commissioners reported that both tracts did not exceed in value $1,000, and that they had set off the whole to the plaintiff in error, as his homestead.

The defendant in error filed exceptions to the report, and moved the court to modify the decree of the May term; and upon hearing, the court sustained the exceptions, and so modified the decree as to confine the plaintiff in error in his claim to homestead to the one-half acre upon which his house was located, and decreed that the other tract had been properly sold. From this decree plaintiff in error prosecutes this writ of error.

It is insisted by defendant in error that the plaintiff in error was limited in his claim of homestead to the southeast quarter of the southwest quarter of section twenty-eight, upon which his residence was located; that this was a legal subdivision of land, of which the court will take judicial notice, and as Darby was in possession of that tract at time of levy and sale, he cannot be allowed to assert any homestead right in the fifteen-acre tract, as that was upon another and different...