Loomis v. Gerson , 62 Ill. 11 ( 1871 )

Mr. Chief Justice Lawrence

delivered the opinion of the Court:

We held, in Conroy v. Sullivan, 44 Ills., 451, that, under the laws of 1851 and 1857, the homestead was protected from sale under a judgment obtained against the husband for his torts, as vrell as under one obtained for violation of his contracts. The object of these laws was to furnish a shelter for the wife and children, which could not be taken away or lost by the act of the husband alone. This principle must equally exempt the homestead from sale under a judgment for a fine and costs rendered in a criminal prosecution for a misdemean- or. The wife is not to suffer for the wrongful act of the husband. The State must submit to the same exemptions of a defendant’s property that it imposes upon its citizens. The court, therefore, did not err in overruling the demurrer to the bill.

The'sale, however, should not be absolutely set aside. All that the judgment debtor has a right to claim is $1,000, and if the defendant prefers to pay that sum to the complainant, who stands in the shoes of the judgment debtor, he should be permitted to do so, and retain the title.

The mortgages paid by the complainant were extinguished by his payment in the manner stated in his bill.

For the error in setting aside the sale absolutely, the decree must be reversed and the cause remanded.

Decree reversed.