Wike v. Garner

• Decision Date: 17 April 1899
• Parties: WIKE et al. v. GARNER.
• Court: Illinois Supreme Court

179 Ill. 257

53 N.E. 613

WIKE et al.

v.GARNER.

Supreme Court of Illinois.

April 17, 1899.

Error to circuit court, Pike county; Harry Higbee, Judge.

Bill by John Wike and another against Jonathan Garner. Decree for defendant. Complainants bring error. Affirmed.

W. E. Williams, for plaintiffs in error.

W. L. Coley, for defendant in error.

CRAIG, J.

This is a writ of error sued out to reverse a decree of the circuit court of Pike county. It appears from the record that plaintiffs in error, John and George Wike, on the 11th day of September, 1893, obtained a judgment before a justice of the peace against defendant in error, Jonathan Garner, for the sum of $153 and costs. On the 16th day of the same month, on the oath of plaintiffs, an execution was issued on the judgment, and delivered to a constable. On the 18th day of the same month the execution was returned nulla bona, and on the same day a transcript of the judgment was made out, and filed in the office of the clerk of the circuit court. Thereafter, on the 25th day of August, 1894, an execution was issued on the judgment, and delivered to the sheriff. The sheriff levied on real estate, which was advertised and sold to plaintiffs in error on the 22d of September, 1894, for the amount of the judgment and costs, and the execution was returned satisfied. Upon the expiration of the time allowed by law for redemption, December 24, 1895, the sheriff made plaintiffs a deed for the land sold. Upon obtaining the deed, plaintiffs in error discovered that defendant in error never owned or had any title to the land which had been sold. Thereupon they filed this bill to vacate the satisfactionof their judgment, and to enjoin the defendant in error from selling a certain house and lot in the town of Eldara, which it was alleged he owned, and to subject the property to sale in payment of the judgment. The defendant answered, denying the allegations of the bill, and alleging ‘that the deed to such property was taken in his name together with that of his sister Susan Garner, and the said property was paid for by him and the said Susan Garner, and was bought by them with the intention and for the purpose of using the same as and for a home for him (the defendant) and his sister Susan Garner and his sister Emma Garner, who then was, and for a long time prior thereto had been, and now is, a distracted person, and dependent upon him for care and support, and he, together with the two sisters aforesaid, as soon thereafter as a house could be erected upon the premises, did occupy the same as a home, and since then have and now do occupy the same, which said above-described property does not exceed in value $1,000; that he is the head of the family consisting of himself and his sisters, Susan and Emma Garner, aforesaid, and that they (the said sisters) now are, and since, to wit, November 20, 1889 (at which time his father died), have been, dependent upon him for support, and he has since that time supported them, and taken upon himself the duty so to support and care for them.’ On the hearing the defendant in error testified as follows: ‘I am postmaster at Eldars. I am thirty-three years of age. Parents are not living. Father died in 1889, and mother in 1896. I live with two sisters. One sister is a year older than myself,-a distracted person. Has been since she was fifteen years of age. My other sister is thirty years old, and she keeps house for us. We have lived together since mother died, and I have supported and cared for the two girls since that time. I bear all the expenses. I own no property at Eldara except the house and lot,-the same property described in the bill. I bought the property in June of this year [1897]. The title to the property is in myself and sister Susan. That is the sister that is not distracted. We proceeded to build a residence at once. We moved into the residence, and now occupy it. We bought the lot for a home. The house and lot was $600. Paid $130 for the lot. The building cost about $450. I claim to be the head of the family, and to occupy the house as a homestead.’ On crossexamination the witness further testified that at the time the injunction was served he had contracted to sell the place for $650, and intended to invest the money in another home. The testimony of this witness was not contradicted, nor were the facts disclosed by him controverted. Among other facts found by the court and incorporated in the final decree are the following: ‘The court further finds that the said Jonathan Garner and his sister Susan Garner purchased said property and erected a residence thereon for the purpose and with the intention of making the same a homestead; that he is a single man, residing with a famly consisting of two sisters; and that he is the head of the same. The court further finds that, at the time of service of the writ of injunction herein and the commencement of this suit, said property was the homestead of the defendant, and that the same was exempt from execution and sale, and that the same was not subject to the lien of any judgment obtained by complainants, and that the injunction should be dissolved.’

Three questions are raised in the argument of counsel for plaintiffs in error: First, will the undivided interest of the defendant, under the circumstances of the case, support a homestead right? Second, will the mere intention to occupy property as a homestead, not carried into effect by subsequent actual occupancy, support a homestead right? And, third, will the homestead right attach by the voluntary act of the claimant moving into and occupying the property, and claiming the same as a homestead, pending the injunction proceedings?

Section 1 of the homestead act provides ‘that every householder having a family shall be entitled to an estate of homestead, to the extent in value of $1,000, in the farm or lot of land and buildings thereon owned or rightly possessed, by lease or...