Van Antwerp v. Horan

• Decision Date: 23 May 1945
• Docket Number: No. 28641.,28641.
• Citation: 390 Ill. 449,61 N.E.2d 358
• Parties: VAN ANTWERP v. HORAN, Bailiff, et al.
• Court: Illinois Supreme Court

390 Ill. 449

61 N.E.2d 358

VAN ANTWERP

v.HORAN, Bailiff, et al.

No. 28641.

Supreme Court of Illinois.

May 23, 1945.

Appeal from Circuit Court, Cook County; Philip J. Finnegan, judge.

Suit by Bertha G. Van Antwerp against Albert J. Horan, Bailiff, and another, to restrain named defendant from selling certain realty. From a decree that a permanent writ of injunction should issue against defendants, defendants appeal.

Decree affirmed.

Werner W. Schroeder and Theodore W. Schroeder, both of Chicago, for appellants.

Harold L. Reeve and Elmer M. Leesman, both of Chicago, for appellee.

THOMPSON, Justice.

Appellee, Bertha G. Van Antwerp, filed her complaint in the circuit court of Cook county on September 19, 1944, seeking to restrain Albert J. Horan, as bailiff of the municipal court of Chicago, from selling certain real estate which she had purchased from Eva M. Ormond. The complaint charged that on September 25, 1941, the Englewood Hospital Association of Chicago recovered a judgment against one Frank Ormond, in the sum of $83.75, in the municipal court of Chicaog; that execution was issued and served and, on October 30, 1941, a levy was made under the execution on the interest of Frank Ormond, who owned the said real estate in joint tenancy with his wife, Eva M. Ormond; that after the execution and levy, Frank Ormond, on September 20, 1942, died leaving surviving his widow who, during his lifetime and at the time the judgment was obtained against him, was the owner, in joint tenancy with him, of the property against which the levy was made; that on August 18, 1944, Eva M. Ormond conveyed the property to appellee, who went into possession of the real estate; that on September 19, 1944, the defendant Harry L. Peters purchased from the Englewood Hospital Association of Chicago, its interest in said judgment. The appellants, Albert J. Horan, bailiff of the municipal court of Chicago, and Harry L. Peters, assignee of the judgment creditor, Englewood Hospital Association, filed their motion to dismiss, in which they urged that the making of the levy acted as a severance of the joint tenancy and that the joint tenancy having become severed, the interest of the joint tenant, who was judgment debtor, was subject to be sold at the bailiff's sale. The motion being denied, the defendants elected to stand upon their motion and the trial court entered a decree that a permanent writ of injunction issue against the defendants, Albert J. Horan, bailiff of the municipal court of Chicago, and Harry L. Peters, restraining said defendants, each and both of them and their servants and agents, from selling, or offering to sell the premises in question, or any interest therein, pursuant to the levy made October 30, 1941, as shown by the recorded certificate. From this decree the defendants appeal.

The sole question presented to this court for determination is whether or not a joint tenancy is severed by a levy made under the execution upon the share or interest of one of the joint tenants.

The characteristics of a joint estate are derived from its unity, which are the unity of interest, the unity of title, the unity of time and the unity of possession. Gaunt v. Stevens, 241 Ill. 542, 89 N.E. 812;Deslauriers v. Senesac, 331 Ill. 437, 163 N.E. 327, 62 A.L.R. 511. It is the destruction of one or more of the four unities that severs and destroys the joint tenancy and this may be done by a conveyance, voluntary or involuntary, of the interest of one of the joint tenants, and the unity of title and interest being destroyed, the interest severed is changed into a tenancy in common. Spadoni v. Frigo, 307 Ill. 32, 138 N.E. 226. It is recognized that the interest of the joint tenant in real estate is subject to levy and sale upon execution. Johnson v. Muntz, 364 Ill. 482, 4 N.E.2d 826.

The appellants urge, however, that the making of the levy destroys the identity of interest in that this is such an act in reduction of the interest of the joint tenant as to destroy the unity of interest and to bring about a severance of the joint tenancy. This court has previously considered the question of the effect of a judgment lien on the interest of a joint tenant and has held that the judgment lien does not sever the joint tenancy and that by the taking of the judgment nothing was done to sever this estate. Peoples Trust & Savings Bank v. Haas, 328 Ill. 468, 160 N.E. 85. This presents to us for consideration the effect of the levy upon the interest of the judgment debtor holding as a joint tenant. To be specific, does a levy made under an execution upon the share or interest of one of the joint tenants, sever or terminate, before final sale, the joint tenancy? This presents a new proposition and we have been cited no authority in which this exact and precise question has been passed upon in this or any other court.

Appellants cite a number of authorities to the effect that the interest of a joint tenant in real estate is subject to levy and sale upon execution and that estates in joint tenancy may...