Douthett v. Winter

• Decision Date: 22 January 1884
• Citation: 1884 WL 9716,108 Ill. 330
• Parties: ELLA DOUTHETTv.SAMUEL WINTER.
• Court: Illinois Supreme Court

108 Ill. 330

1884 WL 9716 (Ill.)

ELLA DOUTHETT

v.SAMUEL WINTER.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 22, 1884.

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the Circuit Court of Effingham county; the Hon. THOMAS S. CASEY, Judge, presiding.

Mr. HENRY B. KEPLEY, for the appellant:

A tax on real estate is a lien thereon from the first day of May in the year it is levied, prior to all other liens, demands or claims whatever, and a title based upon a valid sale under a judgment rendered for such tax against the owner, takes precedence of, and is not subject to, the right of homestead in, or other liens. Rev. Stat. chap. 120, sec. 253; People v. Stahl, 101 Ill. 346; Cooper et al. v. Corbin et al. 105 Id. 224; Eaton's Appeal,83 Pa. St. 152; Dunlap v. Gallatin County, 15 Ill. 7; Dennis v. Maynard et al. Id. 477; Almy v. Hunt, 48 Id. 45; Binkert v. Wabash Ry. Co. 98 Id. 206; Rogers v. Dickey, 1 Gilm. 645; Cooley on Taxation, 305, 306, and cases cited; Burroughs on Taxation, 371, 374; Stokes v. State of Georgia, 45 Ga. 412; People v. Biggins, 96 Ill. 481.

Section 253 of the Revenue law, and section 3 of the Exemption law, taken either separately or together, effectually and wholly exclude all right of homestead in a case like this.

A title based on a sheriff's sale of real estate under a judgment for the purchase money thereof, takes precedence of the right of homestead, even when the fact that it is for the purchase money does not appear from the judgment, but has to be shown by extrinsic evidence, and that the homestead exemption may be impeached and defeated by a purchaser at a sheriff's sale, by proof that the sale was under a judgment for a demand that is within the exceptions of the Statute of Exemptions. People v. Stahl, 101 Ill. 346; White v. Clark et al. 36 Id. 532; Durham v. Bostick, 72 N. C. 356; Freeman on Judgments, 180, 181; Stevenson v. Marony, 29 Ill. 532.

The same principle that applies to a demand for purchase money will certainly apply to a demand for taxes.

When a debt secured by lien is reduced to a judgment, the lien is not lost, but follows the indebtedness in its new form so long as it can be identified. Eschback v. Pitts, 6 Md. 71; Wayman et al. v. Cochran, 35 Ill. 152; People v. Stahl, 101 Id. 346; Almy v. Hunt, 48 Id. 45; Ober v. Gallagher, 93 U. S. 206; Jones on Mortgages, secs. 1215, 1220, 1221; Dunkley v. Van Buren, 3 Johns. Ch. 330.

Mr. B. F. KAGAY, and Mr. JOHN C. WHITE, for the appellee:

While the State may proceed in rem against land for taxes, or bring a personal action against the tax debtor, at its election, yet each remedy must be in a manner peculiar to itself, and by the means which the law has made applicable and appropriate to the one chosen. A personal judgment for taxes can not operate both in personam and in rem at the same time. People v. Stahl, 101 Ill. 346. Homestead, under the law of 1851, is exempt from sale under a judgment for a tort, the same as a debt. ( Conroy v. Sullivan, 44 Ill. 451.) Also, from a sale under a judgment for a fine and costs rendered in a criminal prosecution. Loomis v. Gerson, 62 Ill. 13.

The clause in the Homestead Exemption act that the exemption should not apply to sales for non-payment of taxes or assessments, or for debt, etc., for the purchase or improvement thereof, was intended to and does apply only to judgments and decrees in personam. Douthett v. Kettle, 104 Ill. 356; Humes et al. v. Gossett, 43 Id. 299.

This was a proper matter of defence to the action of forcible detainer, and the judgment of the court in refusing a writ of possession was correct. Connor v. Nichols, 31 Ill. 148; Smith v. Miller, Id. 157; Thornton v. Boyden, Id. 200.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This was an action of forcible detainer, brought by Ella Douthett, against Samuel Winter, before a justice of the peace, to recover possession of a tract of land described by its numbers in the complaint filed. On the trial before the justice of the peace plaintiff recovered a judgment, but on defendant's appeal to the circuit court, where a trial de novo was had, judgment was rendered for defendant. The latter judgment was affirmed in the Appellate Court for the Fourth District, and a majority of the judges of that court having certified the case, in their opinion, involves questions of law of such importance, on account of collateral interests, it should be passed on by the Supreme Court, plaintiff brings the case to this court on appeal, as is authorized to be done by the Practice act.

It is not controverted, demand in writing was made on defendant for the possession of the premises in controversy, and that he refused to surrender possession. Plaintiff's right to possession is based on a sheriff's deed to the property, made in pursuance of a sale on an execution issued on a transcript judgment from a justice of the peace, which had been filed in the office of the clerk of the circuit court, as the statute provides may be done. No objection is taken to the regularity of the sheriff's deed that in any essential degree affects its validity, or to the regularity of the proceedings anterior to the making of the deed. It is admitted the premises described in the sheriff's deed are the homestead of defendant, and have been occupied by him as such for the last twenty years past, and the defence insisted upon is, the premises were not subject to sale under the execution issued on the transcript judgment in evidence, unless his homestead therein had first been set off to him, according to the provisions of the statute in that behalf, which had not been done. On the other hand, plaintiff maintains the judgment under which the property was sold was recovered for forfeited taxes due on the property itself, and therefore the property is liable to levy and sale under this judgment, because of section 3 of the Homestead act, which provides, “no property shall, by virtue of this act, be exempt from sale for non-payment of taxes or assessments, or for any debt or liability incurred for the purchase money, or improvements thereon.” The position taken is, as this judgment was recovered for forfeited taxes due on the property, the subsequent sale under the execution was in law a “sale for the non-payment of taxes,” as those terms are used in the “Homestead act,” and hence the premises, although the homestead of defendant, are not exempt from sale under the...