Herdman v. Cooper , 1890 Ill. App. LEXIS 464 ( 1891 )

Reeves, J.

We think it must be conceded, in the light of the decisions of the Supreme Court of this State, that a husband can have a homestead in his wife’s property to the same extent as if the title to the property was in himself. He can have but one homestead. If that attaches to property owned by the wife he can not have another homestead in property the title to which is in himself. In this case, however, it is contended that lots 2 and 3, being in one in closure, and both lots used in connection with the family, the homestead right or estate attached to both lots, even though the value of lot 3, upon which the residence was located, was more than §1,000. The case of Hay v. Baugh et al., 77 Ill. 500, would seem clearly to settle this question against appellants. In that case Hay owned lots 1 and 2 in a certain block, both in one inclosure. Lot 1, on which the residence was located, was shown to be worth more than §1,000. A levy was made, under an execution against Hay, on lot 2, and he set up the same claim as is made by appellants, but the court said: “Was lot 2 a part of his homestead within the meaning of statute? * * * The statute exempts the lot of ground upon which the debtor resides with his family; not the inclosure, homestead or farm. In this case Hay resided on lot 1, which was worth more than $1,000 and it was his homestead; citing Reinbach v. Walters, 27 Ill. 393; Tourville v. Pierson, 39 Ill. 447; Hill v. Bacon, 43 Ill. 477; Hubbel v. Canady, 58 Ill. 425. Lots 1 and 2 are separate tracts of ground and are distinct legal subdivisions under the town plat, as much so as are two different quarter sections of land. We can, in this case, see no pretense for holding lot 2 was exempt from levy and sale. To so hold would not be to construe the statute, but to override and disregard it.”

Where two lots are in one inclosure, the dwelling house on one and the other used in connection with the dwelling for the use of the family, and the one on which the dwelling is situated is not worth $1,000, there would be good reason for saying that the homestead right attached to both lots; but when the lot on which the dwelling is situated, is worth more than $1,000, there is no more reason for saying that the homestead attaches to the adjoining lot in the same inclosure, than there would be for saying that the homestead right would attach to a section of land in one inclosure, where the dwelling house was located on one forty-acre tract of the section. How, taking the facts of this case under this view of the law, it would seem to follow, as a necessary conclusion, that the homestead right of Herdman is confined to lot 3; and if we should concede that the condition of the title to lot 3 was not such as would support a homestead, we fail to see how such a right could attach to lot 2. The dwelling house, which is the foundation fact upon which the homestead must stand, does not stand upon any part of lot 2. Hence we do not find it necessary to decide the question whether the homestead can be maintained when the title to premises is held in common.

It is also claimed that when McLaughlin bid off lot 2 at the sale under his execution, September 15, 1888, the sale was complete so far as McLaughlin was concerned. This seems to us to be a misapprehension. The sale was not complete until the money was paid to the sheriff, and under the -facts shown we think it was dearly the duty of the sheriff to re-advertise the property for sale, and liis return of the execution to the office of the clerk did not relieve him from this duty. He had made a levy of the execution on lot 2 in the lifetime of the execution; it was his duty to hold the execution until he had disposed of the levy by a sale.

The return made by the sheriff on the execution after the sale of September 15, 1888, shows that it was not completed; that the purchaser refused to complete it. Bellingall v. Duncan et al., 3 Gilm. 477. The most that could result in such a case would be to make the purchaser, if on a re-sale the property did not bring as much as at first sale, responsible for the difference. In this ease the property brought more than double the amount it did at the first sale.

Finding no error in the action of the Circuit Court in dismissing the bill of appellant, the same is affirmed.

Decree affirmed.