1. Under the homestead laws of Illinois, the homestead right is
not in an absolute sense an estate in the land. The fee is left as
it was before the statutes, subject to a right of occupancy, which
cannot be disturbed while the homestead character exists.
2. The disposition of the property by judicial sale is
accordingly left unaffected, except so far as is necessary to
secure a homestead for the family of the occupant.
3. Hence the land in fee can be sold under execution, subject to
the homestead right, and the purchaser has the absolute title when
the homestead right ceases.
The statutes of Illinois [
Footnote 1] relating to homesteads enact:
"SECTION 1. . . . There shall be exempt from levy and forced
sale, under any process or order from any court in this state, for
debts contracted,
the lot of ground and buildings thereon,
occupied as a residence, and owned by the debtor, being a
householder and having a family, to the value of $1,000. Such
exemption shall continue after the death of such householder, for
the benefit of the widow and family, some or one of them continuing
to occupy such homestead, until the youngest child shall become
Page 81 U. S. 464
21 years of age, and until the death of such widow, and no
release or waiver of such exemption shall be valid unless the same
shall be in writing subscribed by such householder and his wife, if
he have one, and acknowledged in same manner as conveyances of real
estate are by law required to be acknowledged."
"SECTION 3. If in the opinion of the creditors or officer
holding an execution against such householder, the premises claimed
by him or her as exempt, are worth more than $1,000, such officer
shall summon six qualified jurors of his county, who shall appraise
said premises, and if, in their opinion, the property may be
divided without injury to the interest of the parties, they shall
set off so much of said premises, including the dwelling house, as
in their opinion shall be worth $1,000, and the residue of said
premises may be advertised and sold by such officer."
"SECTION 4. In case the value of the premises shall in the
opinion of the jury be more than $1,000, and cannot be divided as
provided for in this act, they shall make an appraisal of the value
thereof, and deliver the same to the officer, who shall deliver a
copy thereof to the execution debtor, with a notice thereto
attached that unless the execution debtor shall pay to said officer
the surplus over and above $1,000, on the amount due on said
execution, within 60 days thereafter that such premises will be
sold."
"SECTION 5. In case such surplus, or the amount due on said
execution, shall not be paid within the said 60 days, it shall be
lawful for the officer to advertise and sell the said premises, and
out of the proceeds of such sale to pay to such execution debtor
the said sum of $1,000, which shall be exempt from execution for
one year thereafter, and apply the balance on such execution,
provided that no sale shall be made unless a greater sum than
$1,000 shall be bid therefor, in which case the officer may return
the execution for want of property."
With this statute in force, one Craddock, the head of a family,
was from 1853 till 1863 the owner of a lot in Illinois which
constituted his homestead; his house being built on one half, and
the other half, exceeding in value $2,000, being used for its
necessary purposes, both halves alike, however, constituting, as
was assumed by the court, the homestead of himself and family.
Page 81 U. S. 465
In 1858, one Spear obtained a judgment against Craddock, but
although the homestead property was sufficient to pay his demand
and set off to the debtor what he was entitled to under the law,
Spear did not pursue any of the modes pointed out by the statute of
obtaining satisfaction of his property, but caused the western half
to be sold at sheriff's sale under his execution, and having
obtained a sheriff's deed for this half conveyed it to one
Curran.
Subsequent to this -- that is to say, in 1863 -- Craddock and
wife conveyed the whole lot, east and west halves alike, in fee
simple by deed with full covenants releasing the home stead, and
properly acknowledged, to certain persons who subsequently conveyed
to one Black. In two weeks after Craddock and his wife thus
conveyed the premises, Craddock with his family removed from them
and ceased to occupy them afterwards.
In this state of things, A.D. 1866, Curran claiming title
through the judicial sale to Spear brought suit against Black for
the west half of the lot; Black defending himself under the title,
if any, acquired under the deed from Craddock and wife to his
vendors.
The court below, relying, as was said here by counsel, on
McDonald v. Crandall and
Coe v. Smith, decisions
in the Supreme Court of Illinois, [
Footnote 2] and considering that the sheriff could levy on
and sell and convey a part of the homestead lot, while in occupancy
of the judgment debtor, and that the deed would take effect if the
debtor and his family abandoned the homestead, adjudged that the
plaintiff was entitled to the property claimed by him, that is to
say the western half of the lot, in fee simple, and gave judgment
accordingly. That judgment was now here for review.
Page 81 U. S. 468
Mr. Justice DAVIS delivered the opinion of the Court.
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.
Page 81 U. S. 469
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
Page 81 U. S. 470
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, [
Footnote 3] 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, [
Footnote 4] 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, [
Footnote 5] 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 $1,000, and a
lien upon the surplus where they were worth more than that sum,
yet, where the owner conveys the same by an absolute 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
Page 81 U. S. 471
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 $1,000 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,
Page 81 U. S. 472
they are conclusive upon the rights of the parties to this
suit.
On the hypothesis that there was 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.
[
Footnote 1]
Laws of 1851, p. 25; Chapter 48 Gross' Statutes, p. 327, amended
by Act of February 17, 1857; Act of 1857, p. 119.
[
Footnote 2]
43 Ill. 231 and 47
id. 225.
[
Footnote 3]
43 Ill. 231.
[
Footnote 4]
47
id. 225.
[
Footnote 5]
48
id. 367.
