# Black v. Curran

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United States Supreme Court
81 U.S. 463
Black v. Curran
ERROR to the Circuit Court for the District of Illinois; the case being thus:
The statutes of Illinois 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 $1000. 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 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 $1000, 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 $1000, 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 $1000, 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 $1000, 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 $1000, 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 $1000 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 $2000, being used for its necessary purposes; both halves alike, however, constituting, as was assumed by the court, the homestead of himself and family.
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, 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.
Mr. Lyman Trumbull (a brief of Messrs. Stuart, Edwards, and Brown being filed on the same side) for the plaintiff in error:
Assuming that the facts show the occupation of the entire lot as a homestead, does the plaintiff show any title to the premises? To recover, he must show a valid execution, a regular levy, and an authorized sale. Now, here none of the requisitions of the law were complied with. Assuming the lien to exist and the premises to exceed in value the sum of $1000, how is this lien to be enforced? The act provides in detail the manner, time, and circumstances under which levy and sale can be made. These provisions are mandatory, prerequisite to the right to sell. They are, by the decision of the Supreme Court, prohibitory of a sale in any other way.
But by the decisions of the Supreme Court of Illinois, which are the rule in this matter for the Federal court, a judgment and execution do not create a lien against the homestead of the judgment debtor, and the owner may sell or mortgage it free from the lien of the judgment. This is emphatically declared in Green v. Marks, a leading case on this matter, and the doctrine of that case has been affirmed by the Supreme Court of the State in a series of decisions. As a rule of property it has existed for ten years. Titles to many valuable tracts and lots of land have been acquired on the faith of this construction. The title of the grantors of plaintiff in error was so obtained in 1863. The judgment in this case unsettles these titles and prescribes a different rule. We submit that, both on principle and the authorities of every State having homestead laws, the doctrine asserted by the court below (that without complying with any of the terms of the homestead law, and in a mode not pointed out by the law, the sheriff can divide the homestead lot, levy on part, sell and convey it, while in the occupancy of the judgment debtor, and that the deed so made will convey title to take effect when the occupation by the debtor of the lot ceases) is in effect a judicial repeal of the law.
The authority to sell is derived confessedly but from the statute. What is it that is exempt from sale? Not some ideal homestead-right estate, leaving another imaginary reversionary interest which can be subjected to the debts of the occupant. The exemption from levy and forced sale, is of 'the lot of ground and buildings.' The thing out of which, about, and in which, all the different kinds of estate arise, cannot be levied on or sold except in the mode provided. If the lot is exempt from levy and sale every conceivable estate in and to said lot must also be exempt. It is no answer to say that the exemption is only to the value of $1000, for the reason that the provisions are by the statute made to apply only where, in the opinion of the creditor, the premises exceed in value $1000: then, and then only, can he demand through the sheriff a jury to ascertain the value and divisibility of the premises, and upon notice to the judgment debtor, after the expiration of 60 days, may he sell. By the proviso to the 5th section, no sale can be made unless more than $1000 shall be bid. The carefully defined provisions to protect the judgment debtor in his homestead right in a case where, in the opinion of the creditor, the value of the lot exceeds $1000, the court below has decided are not necessary in the only possible case in which they could have any application.
By making these provisions in all cases essential no one can be injured. If the premises are only worth $1000, then nothing can be done. If the creditor at any time conceives them to be worth more he can instantly secure his claim by proceeding in accordance with the statute. If he chooses to remain inactive until the judgment debtor conveys, the loss is the result of his negligence.
As to the cases of McDonald v. Crandall and Coe v. Smith, relied on by the court below, it is enough to remark that in the first case the court expressly refer with approval to Green v. Marks, cited and relied on supra by us, and that the opinion in the latter simply refers to the former case as controlling it.
These were cases of voluntary conveyances to grantees of the person claiming the homestead right. The case now before the court involves a sale in invitum. This distinction would of itself be sufficient to demonstrate the inapplicability of these decisions.
But the court in these cases did by no means decide that a deed failing to release the homestead was, or could be, by and of itself, a valid conveyance of the title by virtue of which the grantee might maintain ejectment against the grantor, or his grantees occupying the premises under conveyances from him. They decide only that the irregular deed and the surrender of the premises to the grantee of that deed constituted an abandonment of the homestead to that grantee, so as to estop the claim of the grantor and all claiming through him. It was the concurrence of the voluntary deed and voluntary surrender that operated the destruction of the right.
In the case now before the court the possession was surrendered to the grantees of the deed under which plaintiff in error claims, and he was in possession thereunder when this suit was commenced.
[The learned counsel then went into an examination of decisions in New York, Iowa, Wisconsin, New Hampshire, and Minnesota, to show that the law as conceived by them was the law in every State where exemptions similar to those in Illinois existed.]
Mr. Jackson Grimshaw, contra.
Mr. Justice DAVIS delivered the opinion of the court.

## Notes

* ↑ Laws of 1851, p. 25; Chapter 48 Gross's Statutes, p. 327, amended by act of February 17th, 1857; Act of 1857, p. 119.
* ↑ 43 Illinois, 231, and 47 Id. 225.
* ↑ Bliss v. Clark, 39 Illinois, 596-7.
* ↑ 25 Id. 221.
* ↑ Bliss v. Clark, 39 Id. 590; Ives v. Mills, 37 Id. 76; Hume v. Gossett, 43 Id. 297; Pardee v. Lindley, 31 Id. 187.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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