Hume v. Gossett

• Decision Date: 31 January 1867
• Citation: 43 Ill. 297,1867 WL 5029
• Parties: JOSEPH L. HUME et al.v.GEORGE B. GOSSETT.
• Court: Illinois Supreme Court

43 Ill. 297

1867 WL 5029 (Ill.)

JOSEPH L. HUME et al.

v.GEORGE B. GOSSETT.

Supreme Court of Illinois.

January Term, 1867.

WRIT OF ERROR to the Circuit Court of Edgar county; the Hon. O. L. DAVIS, Judge, presiding.

This was a bill in chancery, filed by George B. Gossett, in the Circuit Court of Edgar county, against Joseph L. Hume and William Ross, impleaded with the trustees of schools of township sixteen, ranges thirteen and fourteen, in Edgar county, to set aside the sale of certain lands owned by the complainant, made upon two judgments obtained in said Circuit Court, against one James C. Burson, complainant's grantor. The defendants demurred to the bill, alleging a want of equity, which demurrer the court overruled; and the defendants having elected to stand by their said demurrer, the court ordered the sales set aside, and granted a perpetual injunction against collecting the said judgments out of said lands. Whereupon the defendants prosecuted their writ of error to this court.

There is but a single question presented by the record for the decision of this court, and which is stated in the opinion.

Messrs. JOHN SCHOLFIELD and R. N. BISHOP, for the plaintiffs in error.

Mr. JAMES A. EADS, for the defendants in error. Mr. JUSTICE BREESE delivered the opinion of the Court:

The plaintiff in error makes this single question upon this record: “Is a judgment against a town collector, on his official bond, a lien upon his homestead?”

To determine this question, we have only to look to the statute, and to the decisions of this court thereon. The plaintiff in error contends, inasmuch as the township organization act was passed subsequent to the homestead act, and as it contains a provision inconsistent with that act, it necessarily repeals it.

What is that provision? It is this: after providing, that the collector shall execute a bond to the supervisor, section seven provides, that every such bond shall be a lien upon all the real estate, severally, of such collector, within the county, at the time of filing thereof, and shall continue to be such lien until its conditions, together with all costs and charges, which may accrue by the prosecution thereof, shall be fully satisfied. Sess. Laws of 1861, p. 227.

The act of 1851, relating to township organization contained this same provision. Scates' Comp. 330. It was approved on the 17th of February, 1851. On the 11th of February, preceding, the homestead act was passed. On the 17th of February, 1857, this act was amended, by a law declaring, that the object of the act was to require, in all cases, the signature and acknowledgment of the wife as conditions to the alienation of the homestead. When, in 1861, the legislature revised the act of 1851, section seven of the act of 1851, making the collector's bond a lien, was merely transferred, without alteration, to the act of 1861, above quoted. There is nothing in this legislation manifesting an intention to change the law as it had theretofore existed. Had it been the purpose of the legislature to deprive township collectors and their families of the benefit of the homestead act, such a purpose would have been clearly expressed, or the legislation be made so repugnant, that the last could...