Rock v. Haas

• Decision Date: 19 May 1884
• Citation: 1884 WL 9908,110 Ill. 528
• Parties: JOHN K. ROCK et al.v.JOHN J. HAAS.
• Court: Illinois Supreme Court

110 Ill. 528

1884 WL 9908 (Ill.)

JOHN K. ROCK et al.

v.JOHN J. HAAS.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

APPEAL from the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding. Messrs. SMITH & BURGETT, for the appellants:

A party failing to avail himself of the remedy to set aside a wrongful sale of his property, should not be permitted, after the time of redemption expires, to set it aside, unless he can show a strong case of fraud, wrong or oppression. Dobbins v. Wilson, 107 Ill. 17.

As to what is an unreasonable delay in moving to set aside a sale, see Winchell v. Edwards, 57 Ill. 41; Noyes v. True, 23 Id. 503.

Facts to excuse the delay should have been alleged in the bill. Piatt v. Vattier, 9 Pet. 405; Johnson v. Johnson, 5 Ala. 90; Badger v. Badger, 2 Wall. 95.

Annie Pierce was not a “householder having a family,” within the meaning of the statute. A “householder” is not simply a house-keeper, but also a master or chief of a family,--one who keeps house with his family. Aaron v. The State, 37 Ala. 106; Griffin v. Sutherland, 14 Barb. 456; Gunn v. Gudehus, 15 B. Mon. 447.

A woman who keeps a house of ill-fame is not a householder, within the meaning of the statute. Bowman v. Quackenboss, 3 Code Rep. (N. Y.) 17.

The family must reside in this State, to give rise to the exemption. Allen v. Menasse, 4 Ala. 554; Boykin v. Edwards, 21 Id. 261; Kieffen v. Berney, 31 Id. 192; Meyers v. Claus, 15 Texas, 516; Alston v. Ulman, 39 Id. 157; Jordan v. Godman, 19 Id. 275; Casey v. Tice, 6 Cal. 625; Benedict v. Bunnell, 7 Id. 245; Dye v. Mann, 10 Mich. 291; McKee v. Wilcox, 11 Id. 358.

A mere intention to occupy, carried into effect after a lien attaches, creates no exemption. Solary v. Howlett, 18 Fla. 756; Oliver v. Snowden, 17 Id. 823; Grosholz v. Newman, 21 Wall. 481; Faut v. Talbot, 15 Ky. 712; Charless v. Lamberson, 1 Iowa, 435; Cole v. Gill, 14 Id. 527; Christy v. Dyer, Id. 438; Elston v. Robinson, 23 Id. 208; Cooledge v. Wells, 20 Mich. 79; Wisner v. Farnam, 2 Id. 472; Holden v. Pinney, 6 Cal. 235; Brown v. Martin, 4 Bush, (Ky.) 47; Hansford v. Holdam, 14 Id. 210; True v. Morrill, 28 Vt. 672; Lee v. Miller, 11 Allen, 37; Williams v. Darris, 31 Ark. 466.

Mr. ELI B. FELSENTHAL, for the appellee:

The law exempts the homestead, and the debtor is required to do no act to avail of its protection. Hence the rules as to laches in other cases do not apply. Hubbell v. Canady, 58 Ill. 425; Pardee v. Lindley, 31 Id. 186.

In the following cases judicial sales of the homestead were set aside because the provisions of the Homestead act were not complied with: Green v. Marks, 25 Ill. 221; Hume v. Gossett, 43 Id. 297; Conklin v. Foster, 57 Id. 154; Hubbell v. Canady, 58 Id. 425; Stephenson v. Marony, 29 Id. 532; Haworth v. Travis, 67 Id. 301; Hoskins v. Litchfield, 31 Id. 137; Mooers v. Dixon, 35 Id. 208; Cummings v. Burleson, 78 Id. 282; Muller v. Inderreiden, 79 Id. 382; Moore v. Titman, 33 Id. 560.

The statutes of Alabama and Texas give the exemption only to families in the State, and hence the authorities cited have no application.

The statute should receive a liberal construction. ( Deere v. Chapman, 25 Ill. 498.) The statute only requires occupancy by the householder,--not by the family. A widow without children is entitled to the homestead rights of her husband. White v. Plummer, 96 Ill. 394.

Actual residence by the head of the family prior to the creation of the lien or alienation, with the intention of taking the premises for use as a house for the party's family, is sufficient to create the exemption. Thompson on Homesteads, sec. 260.

Minors being, in general, incapable of changing their domicile, retain that of their parents. Story on Conflict of Laws, sec. 46, p. 56. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a bill in chancery, filed by Haas, against Rock and others, to set aside a sheriff's deed and two tax deeds for a lot in the city of Chicago. The lot belonged to Annie Pierce, in 1878, but was incumbered to the amount of $600, by two trust deeds to Knaus. In January, 1878, Rock recovered judgment against her in the Superior Court. A writ of execution was issued upon the judgment, to the sheriff of Cook county, who levied on the premises, and in pursuance of the levy, sold them at public sale on the 25th of February, 1878, to Rock, and gave him a certificate of purchase; and no redemption having been made, the sheriff executed a deed to Rock for the premises, and it was recorded. It appears that after the sale Annie Pierce intermarried with one Jungbluth; that Rock sued them, before a justice of the peace, in an action of forcible detainer, after he received his sheriff's deed, and recovered judgment. A writ of possession was issued, and Rock was put in possession of the premises in March, 1880. In the month of June, 1880, Rock borrowed of appellant Burgett $435, for which he gave his promissory note, payable in three years, and to secure its payment he executed a trust deed to J. M. H. Burgett, as trustee, which deed was duly recorded. A tax deed was made to John N. Young, for the premises, in May, 1880, and he released to Rock. A second tax deed was made to Young on the 26th of October, 1881, and in April, 1883, Young also conveyed this title to Rock. Annie Pierce, in March, 1880, executed a deed for the premises to appellee, Haas, and he seeks to recover the premises, because, as he claims, the sheriff's sale and the tax deeds are void, and that Rock having no title, Burgett acquired no lien on the property by the trust deed to secure the loan by him to Rock. A hearing was had in the circuit court of Cook county, and the relief prayed was granted, and the deeds vacated and set aside. Defendants sought a reversal in the Appellate Court for the First District, but the decree was affirmed, and they appeal to this court.

The ground relied on and urged in the bill is, that at the time of the recovery of the judgment by Rock against Annie Pierce, and of the levy and sale, she was a householder having a family, and she was the head of the same, and residing on the premises as a homestead, and that there was no demand by the sheriff for payment of the execution, and that the sale was made by him without division or appraisement by commissioners, in conformity to the requirements of the Homestead statute. As to the tax deed of 1881, the ground relied on in the bill is, that the notice of sale, and date of expiration of the time of redemption, was not served on Annie Pierce, in whose name the premises were listed and taxed, nor on Knaus, the trustee for Haas, and that the taxes for the year 1876 were paid. These are the grounds for the relief sought, but they are denied by appellants. These are the contested questions in the case.

The statute in relation to exemptions will not bear the construction that a person can acquire and hold a homestead title without having a family. The first section provides: “Every householder having a family shall be entitled to an estate of homestead, to the extent in value of $1000, in the farm or lot of land, and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence.” And the same is exempted from attachment, judgment, levy, or execution sale, for the payment of his debts, or other purposes. The second section provides: “Such exemption shall continue, after the death of such householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child becomes twenty-one years of age.” These are the material provisions of the statute which confer and regulate the right of homestead. Under the statute, to create the estate of homestead the householder must have a family, and must hold the designated title to the land, and it must be occupied by him or her as a residence. By the language of the statute three things must concur in the creation of a homestead estate: First, the person must be a householder; second, he must have a family; and third, the premises must be occupied as a residence. If either of these requisites is...