Yeates v. Briggs

• Decision Date: 18 May 1880
• Citation: 95 Ill. 79,1880 WL 10009
• Parties: ANDREW YEATESv.ELIZABETH BRIGGS.
• Court: Illinois Supreme Court

95 Ill. 79

1880 WL 10009 (Ill.)

ANDREW YEATES

v.ELIZABETH BRIGGS.

Supreme Court of Illinois.

Filed at Ottawa May 18, 1880.

WRIT OF ERROR to the Circuit Court of Kankakee county; the Hon. FRANKLIN BLADES, Judge, presiding.

This was an action of ejectment by Andrew Yeates against David Briggs originally, but afterwards Elizabeth Briggs, his wife, was substituted as defendant.

On the trial the record of a judgment in a former action of ejectment against the defendant was introduced in evidence, showing a trial by the court, and judgment, in which the court found the fee in the land to be in the plaintiff, subject to the right of homestead in the said Elizabeth Briggs until her youngest child by Jacob Hertz (her former husband) arrived at the age of twenty-one years, and adjudging that the plaintiff pay the costs. It also appeared that in February, 1879, her youngest child by Hertz became twenty-one years old. The court found for the defendant and gave judgment against the plaintiff for costs, to reverse which this writ of error is prosecuted.

Mr. HARRISON LORING, for the plaintiff in error:

Jacob Hertz and wife made two deeds of trust on the land in controversy, each containing a power of sale, but neither deed nor certificates of acknowledgment mentioned any release of the homestead. He and his wife occupied the land as their homestead at the time and until his death. After his death the widow, Elizabeth, intermarried with the defendant David Briggs, and continued to reside upon the premises. The land was sold to the plaintiff under both deeds of trust, and he conveyed the same to Joseph Darby, who commenced an action of ejectment against David Briggs, claiming to be the owner in fee of the land, and his wife was afterwards made a party defendant. The cause was tried by the court without a jury, who found that the fee of the land was in Joseph Darby, subject to the right of homestead in Elizabeth Briggs until her youngest child by her former husband, Jacob Hertz, arrived at the age of twenty-one years. Afterwards Darby conveyed the land to the plaintiff in error, and in February, 1879, the youngest child became of age, and in August following the plaintiff in error commenced this action.

Elizabeth Briggs had the right to manage her own estate prior to and at the time of the first trial, (see Rev. Stat. 1874, 577-9,) the right to sue and be sued (ibid. p. 445, sec. 1,) and the right as landlord to be made a party to the action, (ibid. p. 445, sec. 18,) and as the court had jurisdiction of the parties and subject matter, it was its duty to find the fee in the land in Darby, subject to a right of homestead in Elizabeth Briggs until her youngest child became twenty-one years of age. Rev. Stat. 1874, p. 446, sec. 30; Rawlings v. Bailey, 15 Ill. 179; Koon v. Nichols, 63 Id. 163.

Where the circuit court has jurisdiction of the parties and subject matter, any judgment entered in reference to the parties or property involved, however erroneous, is not void, but binding on parties and privies until reversed. Stemple v. Thomas, 89 Ill. 146; Chestnut v. Marsh, 12 Id. 173; Rockwell v. Jones, 21 Id. 289; Feaster v. Fleming, 56 Id. 457; Thomas v. Morris, 27 Id. 333; Embury v. Conner, 3 Com. 522; Doty v. Brown, 4 Id. 73; Voorhees v. Bank of the United States, 10 Pet. 473; Gardner v. Buckbee, 2 Cow. 120.

There was no authority of law for the circuit judge to sit as a court for the correction of errors in respect to the final judgment in the action between Darby and the defendant. If that judgment was erroneous, it could only have been avoided by a direct proceeding for that purpose, and could not be attacked for error in this action. Weimer v. Heintz, 17 Ill. 259; Wimberly v. Hunt, 33 Id. 166; Wight v. Walbaum, 39 Id. 555; Elston v. City of Chicago, 40 Id. 514: Mulford v. Stalzenbach, 46 Id. 303; Huls v. Buntin, 47 Id. 396; Cooper v. Reynolds, 10 Wall. 308; Stovel v. Banks, 10 Wall. 583.

These rules apply to judgments in ejectment under the modern practice in such actions. Miles v. Caldweld, 2 Wall. 36; Detgen v. Ross, 54 Ill. 79; Cadwalder v. Harris, 76 Id. 370; Sturdy v. Jackway, 4 Wall. 174; Ryers v. Rippey, 25 Wend. 431.

A judgment determining the title to land makes a part of the title, and runs with the land. Wilson v. Davol, 5 Bosw. 619.

Mr. WILLIAM POTTER, for the defendant in error:

Homestead, as created by the acts of 1851 and 1857, was a homestead to the widow and family, some one of them continuing to occupy the same, until the youngest child became twenty-one years of age and until the death of such widow. Gross' Stat. 1869, p. 327, 1; Turner v. Bennett, 70 Ill. 263.

The Homestead act is a remedial one, and the rule in construing such statutes is, that everything is to be done in advancement of the remedy that can be done, consistently with any fair construction that can be put upon the same. Chicago, Burlington and Quincy R. R. Co. v. Dunn, 52 Ill. 260.

The right is conferred by statute, and can be divested only in the mode prescribed by statute. Wing v. Croffer et al. 35 Ill. 256.

Where a person not under disability is sued and the homestead is involved, it will be affected by any neglect to assert it precisely as any other right. Wright v. Dunning, 46 Ill. 271; Buck v. Conologue, 49 Id. 391.

Where a husband and wife occupy a homestead and the husband dies, and his widow remaining on the premises takes a second husband, who lives with her upon such homestead, she will still be entitled to the homestead. Morrissey v. Stephenson, 86 Ill. 344.

Section 4 of the Ejectment act, in force July 1, 1872, provides that no person shall recover unless entitled to possession. Rev. Stat. 1874, p. 444.

An opinion expressed by a court, but not necessarily involved in the case, lacks the force of an adjudication. Bouvier's Law Dict., title “Dictum.”

A judgment is conclusive only upon the matter which was directly in issue...