Imhoff v. Lipe

• Decision Date: 12 June 1896
• Citation: Imhoff v. Lipe, 162 Ill. 282, 44 N.E. 493 (Ill. 1896)
• Parties: IMHOFF v. LIPE.
• Court: Illinois Supreme Court

162 Ill. 282

44 N.E. 493

IMHOFF

v.LIPE.

Supreme Court of Illinois.

June 12, 1896.

Appeal from circuit court, Jackson county; Joseph P. Robarts, Judge.

Action by August Imhoff against Aaron Lipe, in which there was a judgment for plaintiff. An execution issued on the judgment was placed in the hands of the sheriff, who levied on certain land of defendant, and the latter gave notice of an application to one of the circuit judges to stay the execution as to such land on the ground that it constitutes defendant's homestead. From a judgment that the execution be stayed as to the homestead estate in the premises levied on, and that plaintiff should pay the costs, the latter appeals. Affirmed.R. J. McElvain, for appellant.

J. M. Herbert, for appellee.

PHILLIPS, J.

Appellant recovered a judgment against appellee, on which an execution issued and was placed in the hands of the sheriff, who levied the same on certain lands of the execution debtor. Notice was given by appellee that application would be made to one of the circuit judges of the First circuit to stay the execution as to the lands levied upon, as the same were claimed as a homestead. An order was entered staying the execution until the next term of the circuit court of Jackson county, and at the succeeding term a jury was impaneled, and oral evidence heard, and a verdict returned finding the appellee had a homestead in the land as levied on at the time of the levy. A motion for new trial was entered and overruled, judgment rendered that the execution be stayed as to the homestead estate in the premises levied upon, and that appellant should pay the costs. In this state the law exempts the homestead from sale under execution. The debtor is required to perform no act, to discharge no duty, nor manifest an intention to avail himself of its benefits. Where a sale is made of a homestead under execution, the debtor may, by original bill or otherwise, assert his right of homestead. Moore v. Titman, 33 Ill. 358;Mooers v. Dixon, 35 Ill. 208;Green v. Marks, 25 Ill. 221;Pardee v. Lindley, 31 Ill. 174;Hubbell v. Canady, 58 Ill. 425. As a general rule, the estate can be waived only in the manner prescribed by the statute. It may be abandoned. If the officer having an execution against a debtor sees proper to levy upon a homestead, a claimant need not object; he need not claim it. The sale would be without legal authority. The officer may make a deed to the purchaser, and all these proceedings would have no effect on the title to the homestead beyond that of casting a cloud over it. Hoskins v. Litchfield, 31 Ill. 137;Wiggins v. Chance, 54 Ill. 175. Where it is proposed to levy upon real estate, those interested in making the levy must determine whether the property is exempt as a homestead, and in determining this question, in Freem. Ex'ns, § 241, they must make some, and perhaps all the following inquiries: ‘First. Is the defendant a person on whose behalf or on behalf of whose family a homestead exemption can be acquired? Second. Have the measures necessary for acquiring such exemption been taken with reference to the real estate on which the levy is to be made? Third. Is the defendant's title or estate such as can be held as a homestead under the statute? Fourth. Is the use to which the property is put such as wholly or partially destroys its character as a homestead? Fifth. Does the property exceed in area or value the limit prescribed by statute? Sixth. Is the parcel upon which the levy is desired so distinct or distant from the family residence that it cannot in law be deemed a part of the homestead? Seventh. Has there been any abandonment of the homestead rights? Eighth. Conceding that the valid homestead claim exists, is the liability upon which the writ issued one against which this claim can be asserted?’ And this must be done without waiting for any claim on the part of the defendant. No question is raised as to the manner of trial, or the practice adopted to determine this motion. The judge, in his discretion, heard oral evidence, and submitted the...