Hartwell v. Mcdonald

• Decision Date: 30 September 1873
• Citation: 69 Ill. 293,1873 WL 8455
• Parties: PHINEAS W. HARTWELL et al.v.JONATHAN S. MCDONALD.
• Court: Illinois Supreme Court

69 Ill. 293

1873 WL 8455 (Ill.)

PHINEAS W. HARTWELL et al.

v.JONATHAN S. MCDONALD.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Messrs. HILL & DIBELL, for the appellants.

Messrs. OLIN & PHELPS, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of ejectment, to recover possession of the south half of block 152, in the village of Lockport, in Will county, brought by McDonald against Hartwell; Maria L. Norton, his landlord, having been admitted to defend, as a co-defendant, during the trial.

The plaintiff recovered, and the defendants appealed.

The only question we find it necessary to consider, is that of a homestead.

The plaintiff's claim of title was under an execution sale upon a judgment rendered in the United States Circuit Court for the northern district of Illinois, at the July term, 1857, against D. C. Norton, the husband of Maria L. Norton; the sale under the execution having been made January 30, 1858, and the marshal's deed executed June 11, 1867.

At the time of the rendition of the judgment, the issuing of the execution, and the levy and sale thereunder, the premises were occupied as a homestead by D. C. Norton, he having received a written contract for a deed therefor from one Singer, the owner of them, May 16, 1854, and having taken possession in that year with his family, receiving a deed from Singer June 25, 1857, and having remained continuously in possession for years thereafter. The record shows that D. C. Norton and his family have since removed from the premises and acquired another homestead. And the question which is made in regard to the homestead is this: Did the purchaser, at the execution sale, take any title which, upon the subsequent abandonment of the homestead, he could assert against these defendants in an action of ejectment?

In support of the affirmative of this proposition, appellee relies upon the decision of the Supreme Court of the United States in the case of Black v. Curran, 14 Wall. 469, which must be admitted to be an authority which fully sustains that view.

This court had held that where the owner of homestead premises conveys the same by deed or mortgage, without releasing the homestead right, the fee in the premises, no matter what their value, passes to the grantee, subject only to the right of occupancy on the part of the grantor; and that when such occupancy terminates, the homestead right is annihilated, it not being an estate in the premises which can be transferred as against a former conveyance that has passed the fee. Hewitt v. Templeton et al. 48 Ill. 367; McDonald v. Crandall, 43 Ill. 231.

In Black v. Curran, the court say, that it is difficult to see why the conveyance by the officer of the law, instead of the debtor, should not have the same effect; and they regard it as a logical sequence, that if, as between two grantees, by voluntary conveyances from the owner of the homestead, the first takes the land discharged of the homestead after its abandonment, although the second conveyance contains a release of the homestead and the first does not, then the same rule should obtain, when the property was sold under judicial process, before the debtor conveyed it. But this court has always made a marked distinction between cases of voluntary conveyance by the homestead occupant, and those of compulsory conveyance by the officer of the law. The provision of the homestead law is, that “there shall be exempt from levy and forced sale, under any process or order from any court of law or equity in this State * * * * the lot of ground and the buildings thereon occupied as a residence and owned by the debtor, being a householder and having a family, to the value of $1000.” It is not the mere homestead right of occupancy which is exempted from levy and forced sale, but it is the lot of ground occupied as a residence.

This court has uniformly held that a judgment is not a lien upon homestead premises; that the owner may sell or mortgage the same free from the lien of the judgment, and that no liability can attach to the land in the hands of the purchaser, for the previous judgment debt of his grantor. It has been held that the property is neither subject to a lien, a levy or a forced sale under judicial process, while occupied as a homestead; that it does not vary the result, whether the premises are worth more or less than $1000; that if not worth more than that sum, the sale is prohibited by the statute; and if worth more, then, none of the requirements of the statute having been observed in making the levy and sale, the sale...