Moriarty v. Galt , 112 Ill. 373 ( 1884 )

Mr. Justice Dickey

delivered the opinion of the Court:

The judgment in favor of Moriarty, and against Mooney, was recovered on July 1, 1878, and an execution was issued thereon within one year thereafter, and returned no property found. On February 18, 1883, an alias execution was issued and placed in the hands of the sheriff. On April 12, 1883, Mooney sold his homestead premises to the complainant, Galt, for $2000, reserving therefrom the buildings on the premises. On April 18, 1883, the sheriff summoned three householders, (Mooney still being in the possession of said premises,) and had the same appraised, and a homestead of $1000 in value was set off to him, and a levy made upon the balance. The question is presented for our determination whether the premises, or any part thereof, were subject to levy and sale after they had been sold by the judgment debtor,— or, in other words, whether a judgment becomes a lien upon any portion of property occupied by a debtor and his family as a homestead, where it exceeds in value $1000. If the judgment in this case became a lien upon any part of the lot in controversy, it is evident that any sale by the debtor of his interest in the property could not divest such lien and defeat the rights of the judgment creditor, and such lien may be enforced at any time within seven years, as against a purchaser from the judgment debtor.

Under the decisions of this court, where the lot of ground, with its improvements, is not worth more than $1000, the lien of a judgment does not attach to the property unless it is abandoned as a homestead. In such case there is nothing subject to forced sale upon which any lien can attach, and the debtor may sell and convey the same free from any lien of the judgment against him. Green v. Marks et al. 25 Ill. 221; Hume v. Gossett, 43 id. 297; Wiggins v. Chance, 54 id. 175; Hubbell v. Canady, 58 id. 425; Kingman v. Higgins, 100 id. 319; Hartman v. Schultz, 101 id. 437; Bliss v. Clark, 39 id. 590; Haworth v. Travis et al. 67 id. 301; Stubblefield v. Graves, 50 id. 103.

But it seems plain, from the language of the statute, that the debtor’s estate of homestead is limited in extent to the value of $1000. Section 1, of chapter 52, reads: “That every householder having a family shall be entitled to an estate of homestead to the extent in value of $1000, in the farm or lot of land, and the buildings thereon, owned or rightfully possessed, by lease or otherwise, and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment, ” etc. If the property in which this estate or exemption exists exceeds in value $1000, the excess is not exempt from lien, levy and sale, and it is liable to the same lien of judgments, etc., and to be aliened in the same manner as other property of the debtor. (Eldridge v. Bierce et al. 90 Ill. 474; Haworth v. Travis et al. 67 id. 301; Stubblefield v. Graves, 50 id. 103.) In this case the value of the lot in which the debtor’s estate of homestead was included, exceeded $1000,—the limit of such estate. As to $1000 of the lot, the judgment created no lien, and could not be enforced; but as to the excess in value, the property was liable to be levied upon and sold at any time during the existence of the lien of such judgment, and when a part of the lot of the value of $1000 was set apart, as provided by law, to the debtor, his estate of homestead became fixed, and confined to the portion so set apart, leaving the residue entirely free from the estate and the exemption.

We think the circuit court erred in perpetually enjoining the sale of that part of the lot not set apart to the debtor as his homestead, and hold that it was liable to levy and sale, even as against the grantee of such debtor, and that the Appellate Court erred in affirming the decree of the circuit court. The judgment of the Appellate Court is reversed, and the cause remanded, with directions to reverse the decree of the circuit court, and remand the cause to that court .for further proceedings in conformity with the views here expressed.

Judgment reversed.