The rights of the parties to this suit depend upon the construction to be given the homestead laws of Illinois. These laws exempt from forced sale on execution the lot of ground and the buildings thereon occupied as a residence and owned by the debtor, being a householder and having a family, to the value of one thousand dollars. And the owner of the homestead, if a married man, is not at liberty to alienate it except with the consent of the wife, and there must be an express release and waiver of the exemption on the part of both to render the conveyance operative. A mode is provided for dividing the property, if divisible, in case its value exceeds one thousand dollars, and of selling it, if indivisible, and applying the proceeds in a particular manner. As Spear did not pursue these modes of obtaining satisfaction of his judgment, although the homestead property was sufficient to pay his demand and set off to the debtor what he was entitled to under the law, the inquiry arises whether the proceedings which he did take operated to pass the title after the homestead was abandoned.
It is conceded that this inquiry must be answered if possible by the decisions of the Supreme Court of Illinois on the subject, for these decisions constitution a rule of property by which we are to be governed. Although the exact point in dispute has not been adjudicated by that court, yet certain general principles have been announced which in their application to this case we think relieve it of difficulty. The embarrassment encountered in the administration of this law has been chiefly owing to the fact that the exemption was confined to real estate of a limited value. If the exemption had extended to the entire lot of ground occupied as a homestead without regard to its value, it is easy to see that many troublesome questions which have arisen would have been avoided.
In order to reach a proper conclusion in this case, it is necessary to understand what is the nature of the homestead right. It cannot in an absolute sense be said to be an estate in the land; the law creates none and leaves the fee as it was before, but in substance declares that the right of occupancy shall not be disturbed while the homestead character exists. While this continues, the judgment creditor cannot lay his hands on the property, nor the husband sell it without the consent of his wife, and not then without an express release on the part of both, of the benefits of the law. The purpose of the legislature was to secure a homestead for the family, and the disposition of the property either by judicial sale or voluntary conveyance, was left unaffected except so far as was necessary to accomplish this object. As long as the property retained its peculiar character, it was within the protection of the law, but the exemption from sale under execution or by deed (except with homestead waiver) could be lost by abandonment or surrender; that is to say, by acts in pais.
The Supreme Court of Illinois have recognized and applied these principles in several recent cases, where the effects of voluntary conveyances by the owner of the homestead were the subject of consideration.
In McDonald v. Crandall, [1] it was held that where a conveyance is made not waiving the homestead, it passed the fee, but its operation was suspended until the grantor abandoned the premises or surrendered possession, and that the homestead when occupied by the debtor as such, is not subject to the lien of a judgment. But the case decides that where the homestead exceeds one thousand dollars in value, a judgment becomes a lien and may be enforced against the overplus, and that the Homestead Act has not created a new estate, but simply an exemption.
In Coe v. Smith, [2] the facts of the case were these: The owner having a homestead right in the lot, made in 1858 a mortgage without waiver of the homestead, and then in 1860 made another mortgage with waiver; afterwards, in 1861, he abandoned the premises. The court held that the first mortgage was the prior lien.
In Hewitt v. Templeton, [3] it was decided that upon the abandonment of the homestead by the grantor, the grantee in a deed in which the homestead right has not been waived is entitled to immediate possession, the homestead right being annihilated. The court in commenting on the decision in McDonald v. Crandall, which they say governs this case, uses this language: 'We there held, although a judgment was no lien upon a homestead, where the premises were worth less than $1000, and a lien upon the surplus where they were worth more than that sum, yet, where the owner conveys the same by an abaolute deed or mortgage legally executed, the fee in the premises conveyed, no matter what their value, passes to the grantee, subject only to the right of occupancy on the part of the grantor in case the homestead has not been relinquished, and when such occupancy terminates, the homestead right is annihilated, it not being an estate in the premises which can be transferred as against a former conveyance that has passed the fee.'
If a conveyance by the occupier of the homestead without the release of his right as required by the law has the effect to pass the title, regardless of the value of the premises conveyed, and can be enforced so soon as the occupation of the homestead ceases, it is difficult to see why the conveyance by the officer of the law, instead of the debtor, should not have the same effect.
And if, as between two voluntary grantees, the first takes the land discharged of the homestead after its abandonment, although the second conveyance contains a release of the homestead and the first does not, why should not the same rule obtain when the property was sold on judicial process, before the debtor conveyed it? The junior grantee takes nothing, because there was no estate to pass, it having been transferred by the first conveyance. On the same theory, there was no estate to convey after the sheriff had sold the land. The only difference between a conveyance made by the judgment debtor who has a homestead, and by the sheriff under a sale or execution against his land is, one is the act of the party, the other of the law-one a voluntary, the other an involuntary conveyance. It is certain that the owner of a tract of land of more than $1000 in value, on which there is a judgment, cannot sell it freed from the judgment, and although the homestead as such cannot be sold under execution, nor is a judgment a lien on the homestead as such, but as the land can be sold by the owner subject to the homestead, so a judgment is a lien on the land subject to the homestead, and the land or fee can be sold under execution subject to the homestead, and the purchaser, as in the case of a deed by the debtor without the waiver, has the absolute title when the homestead right ceases.
If these views of the law on this subject are correct, and we think they are fairly deducible from the decisions in Illinois, they are conclusive upon the rights of the parties to this suit.
On the hypothesis that there waw no judgment against Craddock, it is clear that if he had conveyed the lot or any part of it in 1858 (the date of the judgment against him), without the waiver of the homestead, and then in October, 1863, conveyed it with the waiver (as he did), and then left the premises (as he did), the deed of 1858 would bind the land.
It follows equally, that the deed of 1863 with the clause of the waiver, did not convey the absolute title to the west half of the lot, because there was a deed made by the law under a judgment of 1858, and which operated (just as a deed made by Craddock himself would have operated) upon the west half as soon as it ceased to be a homestead-that is by abandonment. And this is true while conceding that on neither hypothesis, that is deed without the waiver and sale under the judgment, could Craddock's homestead right be disturbed-his occupation of the lot.
JUDGMENT AFFIRMED.
Notes edit
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