Holterman v. Poynter

• Decision Date: 05 December 1935
• Docket Number: No. 22709.,22709.
• Citation: Holterman v. Poynter, 361 Ill. 617, 198 N.E. 723 (Ill. 1935)
• Parties: HOLTERMAN v. POYNTER et al.
• Court: Illinois Supreme Court

361 Ill. 617

198 N.E. 723

HOLTERMAN

v.POYNTER et al.

No. 22709.

Supreme Court of Illinois.

Oct. 24, 1935.

Rehearing Denied Dec. 5, 1935.

Suit by F. A. Holterman against A. A. Poynter and others. From an adverse decree, defendants appeal.

Decree reversed, and cause remanded, with directions.

STONE, C. J., and JONES, J., dissenting.

Appeal from Circuit Court, Douglas County; Joseph L. McLaughlin, judge.

J. G. Thomas, of Urbana, and Wirt Herrick, of Farmer City, for appellants.

Harley C. Helm, of Tuscola, and A. C. & Ben F. Anderson, of Charleston, for appellee.

FARTHING, Justice.

The appellee, F. A. Holterman, brought a forcible entry and detainer action in the circuit court of Douglas county against A. A. Poynter and Aveyrilla Poynter, his wife. In that suit defendants filed a plea setting up that the real estate involved had been sold under execution; that it was their homestead and worth less than $1,000; and that the sheriff's deed made pursuant to the sale was void. Holterman then filed a bill in chancery to restrain the Poynters from asserting that defense. The prayer of the bill was not only that appellants be enjoined, but that Holterman be decreed to be entitled to the possession of the land. The master's report was favorable to Holterman and the decree granted the relief prayed. Poynter and wife have appealed to this court.

The premises consist of a house and lot in the city of Arcola, in Douglas county. The title was in Mrs. Poynter. On March 27, 1931, Holterman obtained a judgment by confession against appellants in the circuit court of Coles county for $526.81. An execution was issued and appellants filed a schedule of their personal property. No levy was made upon any property in Coles county. A transcript of the judgment was filed in the office of the clerk of the circuit court of Douglas county. An execution was issued out of that office on May 4, 1931, and a levy was made on the real estate. On June 4 the premises were sold at sheriff's sale and Holterman became the purchaser. No homestead was set off to appellants. The Poynters did not redeem within the period allowed by statute and a sheriff's deed was issued to Holterman September 6, 1932.

The proof shows the value of the property to be less than $1,000. Appellants and their two sons occupied it from November 18, 1828, until March 1, 1930, when they moved to a Coles county farm in which Mrs. Poynter had a life estate. They left a part of their household goods in a closed room of the house in Douglas county and rented the remainder of the premises to Ray Black. He moved in on March 18, 1930, and lived there until December 9, 1931. Before March 1, 1932, appellants returned to the premises, which they now occupy.

Appellants testified that when they moved to the farm they did not intend to leave the Arcola home permanently but intended to keep it as their home and return to it. Lucy Black, David Shelby, Gilbert Basham, and appellants' son, Everett Poynter, testified to conversations with appellants before the levy and sale in which they made similar statements. John Eisle, police magistrate in Arcola, A. A. Poynter, and Edward Poynter, another son, testified that on May 9, 1931, Holterman and his attorney told Poynter, in Eisle's office, that he had a judgment in Coles county and would levy on the Arcola property, and that Poynter told them they could not do that because of his homestead right in it. Edward Poynter testified that a similar conversation took place at the farm between his father and appellee. Holterman testified that no claim of homestead was ever made to him before the sale. His attorney testified that nothing was said in his presence in Eisle's office about a homestead.

Attorney Robert F. Cotton represented appellants prior to the sale. He testified that before the levy was made on the Arcola property he had a conversation with appellants; that they desired to procure a loan on the property; that there was a question as to how long a time they could get; that they did not want any sale made at that time and wanted to put it off; that he advised them that Holterman could be required to proceed against real estate before levying on personal property, and that they would have twelve months and their creditors three additional months in which to redeem the real estate after its sale. He also said appellants told him that was what they wanted done, that they authorized him to require the sheriff to proceed against the real estate, and that they made no claim to him of any homestead rights in the property. He said that he called on the sheriff the next morning and told him of the directions he had received from his clients and tendered the Arcola property to the sheriff for sale under the execution. The sheriff replied that it would be a more expensive route, but Cotton said: ‘It was the way they would have to go.’ A. A. Poynter testified that he asked Cotton if they had a homestead right in the property, and that he replied he did not think they had. Poynter also said they did not authorize anybody to tender the Arcola property to the sheriff. He testified further that he told Cotton they claimed a homestead in the premises.

Both appellants voted at a township election in Coles county held on April 5, 1932. One of the judges of the election testified that their right to vote was questioned, whereupon Poynter said his wife had moved to Arcola to send his children to school; that he was residing on the farm in Humboldt township; and that he still had that for his voting place and it was his home. One of the clerks of the election testified to the same effect. Poynter denied making these statements, and testified that he told the clerk of the election that he lived in Arcola and did not live in Coles county.

Holterman and his attorney testified they never heard of any claim of homestead until they attempted to obtain possession of the property, and that in causing the sale they relied upon the tender to the sheriff made by appellants' attorney. Holterman paid two years' taxes on the property, amounting to $92.25, costs of about $50, and has kept the house insured for $600. He testified that he would reconvey the property upon being reimbursed for the amount of his debt, interest, costs, and taxes.

Upon the hearing the chancellor found that appellants were not occupying the premises when the transcript was filed nor when the sale was made; that prior thereto they occupied the premises as a homestead; that they moved to the farm, leaving a portion of their household goods in the residence; that there was no abandonment of their homestead in the premises; but that they authorized their attorney to tender the property for sale under the execution and were thereby estopped from claiming their homestead exemption.

As grounds for reversal appellants urge that there are only two methods by which a homestead estate can be extinguished, i. e., by a conveyance in writing acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or by abandonment, that appellants were under no duty to manifest nay intention to avail themselves of the benefit of the Homestead Exemption Law, that the premises were exempt, and under the doctrine of caveat emptor appellee took nothing by the sale. On the other hand, appellee claims that appellants' tender of the property estops them from claiming their exemption and amounted to an abandonment of their homestead rights.

Two questions are presented by this appeal: First, was there an abandonment of the homestead by appellants? And, second, are appellants estopped to claim a homestead? On the question of whether there was an abandonment the decision in Imhoff v. Lipe, 162 Ill. 282, 44 N.E. 493, 494, is in point. The master and chancellor both found there was no abandonment here, and in the Imhoff Case a jury found, on practically the same state of facts, there was no abandonment, and we sustained that finding. We there held that a judgment debtor need not perform any act or manifest any intention in order to avail himself of his homestead exemption. If a sale of his homestead is made, he may assert his right to it either by bill or otherwise. He may abandon his homestead, but he can waive it only in the manner prescribed by the statute. He need not object to the levy of an execution upon his homestead, for the reason that a sale and conveyance under an execution would be without authority in law and would not affect his title to his homestead. With reference to voting while the party claiming homestead was absent from his home and his intention to leave it was conditional rather than absolute, we said: ‘The principle is, where a person leaves his residence with only a conditional intention of acquiring a residence elsewhere, he does not lose his residence so long as his intention remains conditional. The intention is material. [Citing City of Beardstown v. City of Virginia, 81 Ill. 541, and other cases.] In O'Hair v. Wilson, 124 Ill. 351, 16 N.E. 256, where one voted without right in another state, it was held he did not lose his residence and right to vote here. Cobb v. Smith, 88 Ill. 199, as to the abandonment of the homestead, is not an authority in conflict with the case of O'Hair v. Wilson. In the Cobb Case the appellee voted in another county to which he had removed. The question being whether there was an abandonment of the homestead, it was held that the fact of his having voted was evidence of an intention and purpose of changing his residence; but, on an examination of that case it is further said : ‘He testified he could not say he was permanently settled in Mason county; that he might find a place which was better, and might return to Jacksonville. He nowhere says he intended, or even expected, to return. * * * The evidence falls far short of proving he then or ever had any intention of returning to his former home.’ The evidence in this record was...