Trustees of Sch. v. Lorenzo D. Hovey Et Ux.
| Decision Date | 31 January 1880 |
| Citation | 94 Ill. 394,1880 WL 9960 |
| Parties | TRUSTEES OF SCHOOLS, ETC.v.LORENZO D. HOVEY et ux. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of DeWitt county; the Hon. LYMAN LACEY, Judge, presiding.
Mr. RICHARD A. LEMON, for the appellants.
Mr. P. T. SWEENEY, for the appellees. Mr. JUSTICE SHELDON delivered the opinion of the Court:
This was an action of forcible detainer, brought by the Trustees of Schools T. 20, R. 2 E, 3d P. M., against Lorenzo D. Hovey, and Matilda Hovey, his wife, to recover the possession of certain real estate in the town of Clinton, in which there was judgment for the defendants, and the plaintiffs appealed.
The plaintiffs claim title and right to recover under a sale of the property on execution upon a judgment against Lorenzo D. Hovey and others. The defendants claim a homestead estate in the premises.
No question is made as to the former existence of the right of homestead in Lorenzo D. Hovey.
The property sold upon the execution for $1424. As the record shows nothing upon the subject whether the sheriff, in making sale of the property, did or not comply with the requirements of the Homestead act, defendants insist the legal presumption is that the officer performed his duty, and that, therefore, it must be presumed that the sheriff proceeded regularly under the Homestead act as he was required to do; that it is to be presumed it was found under that act that the property was worth more than $1000, and could not be divided, and that upon the sale the sheriff paid over to the execution debtor, out of the proceeds, the $1000 which the latter was entitled to receive in such case.
It is enough to say that the sheriff's return on the execution confutes this. It appears from said return that the proceeds of the sale were $1424.41, and that the sheriff paid over to the plaintiffs in the execution $1361.41, showing that he did not pay the execution debtor $1000 out of the proceeds of the sale.
The judgment against Hovey was upon his official bond as county collector, for a breach of condition, and as section 146 of the Revenue act, upon the subject of the official bonds of the county collector, amongst other things, provides that such bonds “shall be a lien against the real estate of such collector until he shall have complied with the conditions thereof,” it is claimed there is no homestead right as against this lien. We are of opinion that this lien does not in any way affect the homestead estate.
The remaining and more serious ground of defence against the claim of homestead right is, that it has been released.
The alleged release and acknowledgment thereof are as follows, the premises described being those involved in this suit:
“Know all men by these presents: That we, Lorenzo D. Hovey, and Matilda Hovey, his wife, of DeWitt county, Illinois, for and in consideration that Amos Weedman, as sheriff of DeWitt county, will levy an execution he now has in his hands against Lorenzo D. Hovey, Jordan Banta, Tilman Lane, James A. Wilson, Benjamin F. Barnett, Thomas Hoop, John D. Graham, Charles Willmore, William A. Squires, George Butler, impleaded with Ross Mitchell, at the suit of the people of the State of Illinois, who sue for the use of school district No. 8, T. 20, R. 2 east of 3d P. M., on the following real estate, to-wit: The south-east quarter and east half of the east half of the south-west quarter of out-lot No. 14, in the original town, now city, of Clinton, in the county of DeWitt, and State of Illinois, and for the further consideration of one dollar to us paid, do hereby expressly release and waive all our rights and claims in and to the said lands above described, which may, does or can exist under and by virtue of any and all laws in this State exempting homesteads from levy and forced sale.
Witness our hands and seals this 24th day of February, A. D. 1877.
This day came before the undersigned, a notary public in and for said county, Lorenzo D. Hovey, and Matilda Hovey, his wife, to me known to be the identical persons who executed the above release and waiver, and who acknowledged that they had executed the same freely and voluntarily for the uses and purposes therein expressed; and the said Matilda Hovey, wife of the said Lorenzo D. Hovey, after having been informed by me of her rights under the Homestead law and of the effect of this instrument, on being examined separate and apart from the said husband, acknowledged that she had...
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Krupp v. Brand
...determine how far the homestead right will extend,’-citing cases. That case has been followed by Potts v. Davenport, 79 Ill. 455; Trustees v. Hovey, 94 Ill. 394;Douthett v. Winter, 108 Ill. 330;Nichols, Shepard & Co. v. Spremont, 111 Ill. 631; and Palmer v. Riddle, 197 Ill. 45, 64 N. E. 263......
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