Herrington v. Herrington

• Decision Date: 31 May 1882
• Citation: 11 Bradw. 121,11 Ill.App. 121
• Parties: ALMIRA HERRINGTONv.AUGUSTUS M. HERRINGTON ET AL.
• Court: United States Appellate Court of Illinois

11 Ill.App. 121

11 Bradw. 121

ALMIRA HERRINGTON

v.AUGUSTUS M. HERRINGTON ET AL.

Appellate Court of Illinois, Second District.

May Term, 1882.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Kane county; the Hon. CHARLES KELLUM, Judge, presiding. Opinion filed August 8, 1882.

Mr. CHARLES WHEATON, Mr. F. G. GARFIELD and Mr. D. B. SHERWOOD, for plaintiff in error; that a court of equity will interfere to protect a person in the enjoyment of his homestead, cited High on Injunctions, § 438.

A decree providing for possession by the mortgagee before the expiration of the time of redemption, is bad: O'Brian v. Fay, 82 Ill. 87; Baker v. Scott, 62 Ill. 86; Flowers v. Brown, 21 Ill. 270.

An injunction will lie to prevent a trespass or to quiet possession: High on Injunctions, § 459; Kirlin v. West, 15 N. J. Law, 448; Rutherford v. Metcalf, 5 Harr. 58; Wangelin v. Goe, 50 Ill. 459.

A partial service of a writ of possession confers no rights; the defendants should be removed and the plaintiff put in exclusive possession: Freeman on Executions, § 474; Scott v. Richardson, 2 B. Mon. 510; Farnsworth v. Fowler, 1 Swan, 1.

The execution of the writ is not complete until the officer quits and leaves plaintiff in peaceable possession: Freeman on Executions, § 474; Adams on Ejectment, 343; Crocker on Sheriffs, § 571.

A judgment becomes a lien only from the last day of the term at which it was actually rendered: Jones v. Guthrie, 23 Ill. 421; Tenney v. Hemenway, 53 Ill. 97.

Courts exercise an equitable jurisdiction over writs of possession, and may recall them if justice requires: Oetgen v. Ross, 47 Ill. 142; Coleman v. Henderson, 2 Scam. 251; Flowers v. Brown, 21 Ill. 270; Johnson v. Watson, 87 Ill. 536.

Plaintiff in error had a right to gain full possession of the premises after the stay order in the ejectment suit: Freeman on Executions, § 477; 3 Washburne on Real Property, 127; Brown v. Smith, 83 Ill. 291.

A recovery can not be had in ejectment on an equity: Pitkin v. Yaw, 13 Ill. 251; Joy v. Berdell, 25 Ill. 537.

The assignment of a note secured by mortgage carries with it only an equitable interest in the mortgage: Edgerton v. Young, 43 Ill. 464; Hamilton v. Lubukee, 51 Ill. 415.

If the judgment or writ of possession was void, the defendants in error had no right to possession under it, and could be enjoined: Goodenough v. Sheppard, 28 Ill. 81; Brush v. Fowler, 36 Ill. 53.

The return of an officer may be contradicted: Owens v. Ranstead, 22 Ill. 161; Brown v. Brown, 59 Ill. 315; Hickey v. Stone, 60 Ill. 458; Wilday v. McConnell, 63 Ill. 278; Sibert v. Thorp, 77 Ill. 43; Jones v. Neeley, 82 Ill. 71; Davis v. Dresback, 81 Ill. 393; Nat. Bank v. Nat. Bank, 90 Ill. 56.

Messrs. BOTSFORD, BARRY & RUSSELL, and Mr. B. C. COOK, for defendants in error; that an injunction will not lie in this case, there being a complete remedy at law, cited Adams' Equity, 210; Hamilton v. Stewart, 59 Ill. 330; Chesapeake & Ohio Co. v. Young, 3 Md. 480; Goodell v. Lassen, 69 Ill. 145; Cooper v. Hamilton, 8 Black, 277; West v. Walker, 2 Green's Ch. 279; Van Winkle v. Curtis, 2 Green's Ch. 422; Kerlin v. West, 2 Green's Ch. 449; Winkler v. Winkler, 40 Ill. 179; Dickey v. Reed, 78 Ill. 261; Stevens v. Beekman, 1 Johns. Ch 317; Wangelin v. Goe, 50 Ill. 459; Fisher v. Bd. of Trade, 80 Ill. 85; Baxter v. Bd. of Trade, 83 Ill. 146; Pfeltz v. Pfeltz, 14 Md. 376.

In this action the return of the officer is conclusive: Hunter v. Stoneburren, 92 Ill. 75; Owens v. Ranstead, 22 Ill. 161; Botsford v. O'Connor, 57 Ill. 72; Barrett v. Wolf, 70 Ill. 76; Fitzgerald v. Kimball, 86 Ill. 396.

A court of chancery has no power to dispossess a party of his property on an ex parte claim to it: The People v. Simonson, 10 Mich. 336; Salling v. Johnson, 25 Mich. 491; Railroad Co. v. Judge, 31 Mich. 457; McCombs v. Merryhew, 40 Mich. 725; Arnold v. Bright, 41 Mich. 209.

Plaintiff in error is estopped to deny the stipulation entered in the former suit: Rubber Co. v. Goodyear, 6 Wall. 155; Dinet v. Eigdnmann, 96 Ill. 41; Railway Co. v. Eastburn, 79 Ill. 141; Hibbard v. Mueller, 86 Ill. 256; Blair v. Reading, 99 Ill. 609.

PLEASANTS, J.

A. M. Herrington, one of the defendants in error, filed his bill against the plaintiff in error, to foreclose two mortgages executed by her deceased husband alone, but purporting and alleged to have been given for debts incurred for the purchase and improvement of the mortgaged premises, and also brought his action of ejectment to get possession, to both of which she interposed, by way of defense, a claim of homestead and dower.

At the October term, 1880, the parties stipulated that said causes might be heard by the judge in vacation, and final decisions entered as of that term. They were so heard and taken under advisement, but not until the next term were the decisions rendered and filed.

In the foreclosure case it was held that as against a large portion of the mortgage indebtedness, she was not entitled to a homestead or dower, and in the ejectment case, it was ordered that judgment be entered for the plaintiff pursuant to said stipulation.

Decree and judgment were entered as of the last day of the October term aforesaid, and immediately thereupon, without special showing made or leave granted, the plaintiff sued out a writ of possession which was returned fully executed on the following morning, being March 2, 1881. On the same day defendant paid the costs, and obtained an order vacating said judgment, and granting a new trial under the statute, and also a further order staying proceedings, under the writ of which notice was at once duly served. On the 7th, plaintiff in error filed the bill herein, setting forth the facts above stated, and further averring that under said writ the sheriff had put the plaintiff's agent in possession of only the kitchen part of the dwelling-house; that on the 4th, said agent left the same, and she thereupon put out the things he had put in, and locked the outer door against him; that on the same day he returned, broke open said door and replaced said things, and that on the 5th said A. M. Herrington, with the other defendants named in the bill, turned her stock out of the stable and having demanded admission to and possession of the other parts of said dwelling-house and been refused, violently broke open an inner door and threatened to eject her, but refrained on account of the presence of neighbors, who, at her request, had come to protect her; and praying an injunction to prevent them from so doing, or in any manner interfering with her quiet and full possession.

Upon this bill a writ of injunction, ordered by the master, without notice to the defendants, was issued and duly served, and as part of the execution thereof the complainant was fully reinstated.

Several answers were filed by the defendants admitting and justifying said acts on their part upon the ground that the sheriff, by direction of said A. M. Herrington, had given permission to the complainant, upon her yielding to the writ and recognizing his possession of the entire premises, to remain in the exclusive occupancy of the other parts of said dwelling-house and to have the joint use of the kitchen and stable until by reasonable diligence she could make other arrangements, and that in violation of the express understanding to that effect, she had attempted to oust him in the manner stated, and thereby forfeited the privilege he had granted.

They also insisted that her remedy, if any, was at law, and therefore objected to the jurisdiction invoked.

Upon a hearing in vacation on the bill and answers, with affidavits in support thereof respectively, the circuit court dissolved the injunction, and afterward, at the term, dismissed the bill, assessed damages against the complainant and made an order restoring to the defendant, A. M. Herrington, full possession of the premises.

Complainant then sued out this writ of error and here claims that the judgment in the ejectment case, being entered as of the October term when it was in fact rendered at the succeeding February term, was not in pursuance of the stipulation nor authorized by the statute, but was void; that the writ of possession was therefore also void in law and was never executed in fact; that when the bill herein was filed, she was in actual possession and her right thereto to some extent was established by the finding in the foreclosure case; that as against a portion of the mortgage debt, she was entitled to a homestead and dower; that possession is the substance of a homestead estate; that a wrongful deprivation of it is an injury, which is irreparable, and that equity will therefore interfere by injunction to prevent it.

We think these positions involved misapprehension of the facts and law of the case in essential particulars. It was not adjudged, either in terms or effect, in the foreclosure case, that she had any right of possession as against the complainant therein, but the reverse.

As affecting this point, the finding that her claim of homestead and dower was superior to the mortgage for a portion of the debt was wholly unimportant, since it was also expressly held that it was subject to the mortgage for the residue.

For default in the payment of the latter, the mortgagee's right of possession was as absolute as if it had constituted the whole. The enforcement of this right was one of the means provided by the law...