Wiegand v. Wiegand

• Decision Date: 27 November 1951
• Docket Number: No. 32024,32024
• Citation: 103 N.E.2d 137,410 Ill. 533
• Parties: WIEGAND v. WIEGAND.
• Court: Illinois Supreme Court

Page 137

103 N.E.2d 137

410 Ill. 533

WIEGAND v. WIEGAND.

No. 32024.

Supreme Court of Illinois.

Nov. 27, 1951.

Rehearing Denied Jan. 21, 1952.

J. J. Ludens, of Sterling, for appellant.

Ward & Ward, of Sterling, for appellee.

DAILY, Chief Justice.

Henry E. Wiegand, appellant, and Mary K. Wiegand, appellee and cross appellant, were married in 1927 and lived together until August, 1948, when they separated. In 1936, they purchased, as joint tenants, a 4.7-acre tract of land in Whiteside County and later erected thereon a structure described as a 'double garage' in which they resided until their separation. Appellant continues to reside there. The parties have no children and thus far neither has filed suit for divorce or separate maintenance. The appeals before us arise from a suit filed by appellee in the circuit court of Whiteside County wherein she prayed for partition of the above-described real estate, an accounting of personal property alleged to be jointly owned, and for the return of personal property in appellant's possession. Appellant's answer denied her right to partition and by counterclaim he sought to recover $7500 he had paid to appellee in August, 1948, allegedly in return for her promise to come back and live with him, and further, alleged that he was entitled to a homestead in the real estate in the event of partition. After a hearing before the master, the trial court entered a decree which granted partition, denied the accounting and ordered the return of appellee's personal property. As to the prayer of appellant's counterclaim, the decree found that he was entitled to a homestead in the real estate, but refused to order the return of the $7500. The real estate was found not to be susceptible of division and was ordered sold.

Coming directly to this court, appellant contends: (1) that the court erred in ordering the sale of the real estate without his written assent to the sale of his homestead interest; and, (2) that the court erred in not ordering appellee to return to him the sum of $7500. For cross error appellee asserts that the court erred in awarding the entire homestead to her husband and insists that, as joint tenants, they owned it in equal shares. Homestead is an estate in land and not a mere exemption, thus a freehold is involved giving this court jurisdiction on direct appeal. Rossiter v. Soper, 384 Ill. 47, 50 N.E.2d 701; Ketcham v. Ketcham, 269 Ill. 584, 109 N.E. 1025; Garwood v. Garwood, 244 Ill. 580, 91 N.E. 672.

In contending that it was error for the court to order the sale of his homestead without first obtaining his written assent, appellant relies on section 20 of the Partition Act (Ill.Rev.Stat.1949, chap. 106, par. 63), wherein it is provided that the court may order sale of a homestead, or of a life estate, along with the rest of the premises being partitioned, when the owner of such interest is a party to the suit and has filed his written assent to the sale in the court where the proceeding is pending. It should be noted that section 20 is, to the extent it is applicable in this case, substantially the same as section 32 of the former Partition Act (Ill.Rev.Stat.1874, chap. 106, par. 32), which it replaced as of January 1, 1950. Appellant relies completely on the statute, and the effect of his argument is that its mandate leaves a court powerless in any case to order the sale of a homestead in a partition proceeding without the written consent of the one entitled to the homestead. Such a contention ignores those cases wherein it has been held that a court of equity, under its general chancery powers, will not permit a partition proceeding to be used to circumvent and avoid the established principles of law and public policy, and will, in the exercise of its general equitable jurisdiction, control the proceeding so as to protect the rights of all parties concerned. Brod v. Brod, 390 Ill. 312, 61 N.E.2d 675; Murphy v. Murphy, 343 Ill. 234, 175 N.E. 378. In pursuit of the same equitable jurisdiction, a court of equity may enter a decree adjusting the respective rights of the parties to the cause and the party entitled to the homestead. Mix v. King, 55 Ill. 434; Brokaw v. Ogle, 170 Ill. 115, 48 N.E. 394; Hertz v. Buchmann, 177 Ill. 553, 53 N.E. 67; Powell v. Powell, 247 Ill. 432, 93 N.E. 432. In the latter type cases we have held that it is not equitable to allow the owner of the homestead estate to retain the whole of the property merely because it could not be divided where great injustice would result to the owner or owners of the balance of the estate.

The leading case to promulgate this principle is Wilson v. Illinois Trust & Savings Bank, 166 Ill. 9, 46 N.E. 740. There, one who had a homestead, or right of occupancy, to the extent of $1000 in value in premises with a total value of $36,000, sought to retain possession and use of the entire property as against the owner of the balance of the estate. After commenting on the historic powers entertained by equity in partition because the operation of legal remedies was imperfect and incomplete, the court pointed out that although the practice in partition is now prescribed by statute, the long-established jurisdiction of equity is nowise affected. In further reviewing the problem, the court said, 166 Ill. on page 14, 46 N.E. on page 741: 'In a sale under the Partition act, appellant's homestead could not be sold with the rest of the property without her consent in writing filed in the case. (Citing.) But (emphasis ours) equity has a concurrent jurisdiction, under which, in cases like the present, more complete relief may be afforded for the protection and enjoyment of different rights and interests than can be had under that act.' In conclusion, the opinion states that if a court of equity were powerless to act to adjust the equities between the parties where the circumstances require it, then the court would fail of its purpose, and affirms a decree by which the trial court required the party owning the homestead interest to deliver up possession to the owner of the balance of the estate upon receiving payment of $1000. Other decisions in which this court has upheld decrees which compelled a party to accept $1000 in lieu of his homestead and to surrender possession to those entitled to the excess are Cutler v. Cutler, 188 Ill. 285, 58 N.E. 932; Hotchkiss v. Brooks, 93 Ill. 386, and Mix v. King, 55 Ill. 434.

A further indication that the written assent referred to in section 20 of the Partition Act is not always mandatory is found in the case of Betz v. Farling, 274 Ill. 107, 113 N.E. 40. There, a plaintiff, who owned an undivided interest in three tracts of land, filed a suit for partition naming as a defendant one who had a life estate in an undivided one-half of the three tracts. This defendant was defaulted and, upon the report of sale being filed, moved to vacate the order and decree of sale on the ground that she had not consented to the sale of her life estate in the manner porvided by section 32 of the Partition Act. The trial court denied the motion and, in upholding its action, we said, 274 Ill. at page 114, 113 N.E. at page 43: 'That section evidently applies to a case where one has a life estate in the whole or some definite part of the premises, so that there can be no unity of possession until the death of the life tenant. If otherwise interpreted, the section would enable any party having an undivided interest to prevent a sale by the grant of a life estate and deprive the owner of another undivided interest of all remedy.' The situation is much the same in the present case, for to hold that one joint tenant who holds a right of occupancy valued at $1000 may so deprive the other joint tenant of all benefits of the land, would inequitably deprive the latter of all remedy provided by the balance of the Partition Act.

Appellant relies on Richardson v. Trubey, 250 Ill. 577, 95 N.E. 971, and Gradler v. Johnson, 372 Ill. 137, 22 N.E.2d 946, 159 A.L.R. 1123, as supporting his position. An examination of those decisions discloses that in each case, the error which required reversal was not the failure of the owner of the homestead to give his written consent, but the omission of the court in not properly fixing the value of the homestead interest before the sale. While the court, in each case, commented on the written consent to sale, the necessity of consent in those cases was not at issue and was not determined. Indeed, in the Richardson case, the court recognizes and reaffirms the principle of Wilson v. Illinois Trust & Savings Bank, 166 Ill. 9, 46 N.E. 740, that courts of equity, in order to prevent injustices arising from the occupation of premises of much greater value by one who has an estate therein to the extent of only $1000, may require the surrender of possession by the one entitled to the homestead upon payment of $1000 to such owner. The holding of the Richardson case is simply that he cannot be compelled to accept less than $1000 without his consent. In the case before us, the decree provides for a first payment of $1000 to appellant out of the proceeds, in lieu of his homestead interest, thus, the issue in the cases relied upon is not present here.

The purpose of requiring assent to the sale of a homestead interest is to protect, not to enlarge, the homestead estate. An examination of the cases shows that there is an unbending adherence to the requirement where it is necessary to protect the interest of a widow and children from the heirs or administrator of an estate and where it is necessary to protect the householder from the lienor who would deprive him of his entire estate. On the other hand, where the invocation of the requirement results only in an...