Raber v. Gund

Mr. Justice Scholfield delivered the opinion of the Court: This was an action of assumpsit, by appellant, against appellee, for money had and received by the latter to the use of the former. Appellant, being the owner of a farm of six hundred and forty acres, in July, 1871, he and his wife conveyed an eighty thereof, (being two forties lying north and south of each other,) in trust, to Black, to secure the payment of certain promissory notes to Flanagan, and relinquished therein all rights of homestead. In January, 1877, appellant and his wife conveyed the remaining tracts of land in the farm, in trust, to Taylor, to secure the payment of a promissory note to Kleckner; but this deed was afterwards satisfied by a sale of a part of the lands, and it is not connected with the questions arising in this case. On the 20th of October, 1877, appellee recovered four judgments, and on the 7th of December of the same year a fifth judgment, against appellant, in the Stephenson circuit court. Executions were issued on these judgments, and in June, 1878, the sheriff levied them on the south forty conveyed in the trust deed to Black, and on the 29th of June, 1879, by virtue of such levy, he sold this forty to appellee, still leaving a balance due on the execution, and executed to him a certificate of purchase therefor. On the 20th of September, 1879, Black sold the eighty so conveyed to him, to satisfy the debt due to Flanagan, selling the north forty first. The appellee became the purchaser of both tracts at that sale, paying the trustee, on that account, $1891.03, which overpaid the amount due Flanagan by $408.79. Appellee produced his certificate of purchase, and claimed this excess by virtue thereof, and it was paid to him by the trustee. No redemption was made by appellant. This suit is to recover this $408.79 so paid by the trustee to the appellee. The jury, under instructions of the court, found for appellee, and the court, after overruling a motion for a new trial, gave judgment thereon, and that judgment was affirmed on appeal to the Appellate Court for the Second District. Appellant brings the record here by appeal from that judgment. The circuit court, of its own motion, instructed the jury as follows: “This is an action for money had and received, brought by the plaintiff, against the defendant, to recover a sum of money constituting, as it is claimed, the surplus arising from the sale of certain lands under a deed of trust, after satisfying the amount secured by the deed of trust, and the costs and expenses of the sale. It will be your duty to determine, from all the evidence in the case, whether said money has been received by the defendant, and whether he ought, in justice and equity, to pay it over to the plaintiff. In determining these questions, it will be your duty to be guided by the rules of law laid down in the instructions given you by the court. The plaintiff claims said money as being a part of the avails of his estate of homestead in the premises covered by said deed of trust, while the defendant claims it by virtue of a levy upon the land out of which said surplus arose, and a sale of said land, under certain judgments and executions against the plaintiff. ■ By the laws of this State, every householder having a family is entitled to an estate of homestead, to the extent of $1000, in the farm or lot of land and buildings thereon, owned or rightfully possessed, by lease or otherwise, and occupied by him as a residence. If you believe, from the evidence, that at the date of the deed of trust to Black, read in evidence, the plaintiff was the owner in fee of the land described therein, and that he was then a householder having a family, and in the possession and occupancy of said land as a residence, he was entitled to an estate of homestead therein to the extent of $1000. And if you further believe, from the evidence, that the plaintiff, together with his wife, made, executed and acknowledged said deed of trust, then you are instructed that by said deed of trust the plaintiff waived and released his estate of homestead in said land, and was precluded from setting up said estate of homestead as against said Black, or the holder of the promissory note secured by said deed of trust. And if you further believe, from the evidence, that said Black, afterwards, in pursuance of the power contained in said deed of trust, advertised and sold said land at public vendue, for default in payment of said promissory note, and that at said sale the defendant became the purchaser of said land, then the defendant took the title to said land free from said estate of homestead. And if you further believe, from the evidence, that the defendant recovered against the plaintiff the judgments in favor of the defendant, and against the plaintiff, read in evidence, and that said judgments were severally recovered on the days on which they respectively hear date, then said judgments became, from and after the date of their recovery, liens upon said lands, subject to said deed of trust, and also subject to said estate of homestead. And if you further believe, from the evidence, that the plaintiff occupied the north half of said land as his residence, and that his dwelling house and all other buildings and improvements appurtenant thereto were situated thereon, and that the north half of said land largely exceeded $1000 in value, and that the defendant caused executions on his judgments to be issued to the sheriff of Stephenson county, and to be levied upon the south half of said land, and that said sheriff thereupon sold said south half of said land upon said executions, and that at said sale the defendant became the purchaser, and received from the sheriff the certificate of purchase read in evidence, and that said Black afterwards advertised said land for sale under said deed of trust, and on making sale in pursuance of said notice, voluntarily, of his own accord, offered the north half of said land for sale first, and sold the same for the sum of $1600, and that said sum not being sufficient to satisfy said promissory note and the costs of sale in full, then offered for sale the south half of said land, and sold it for the sum of $700, and that said last mentioned sum, after paying the residue of said note and the costs of sale, left a surplus in the hands of said Black of $408.97,—then said surplus belonged to defendant, and not the plaintiff, and you should so find by your verdict. ” Complaint is also made of the refusal of the court to give certain instructions asked by the appellant, but we agree with the view expressed by the circuit judge in overruling the motion for a new trial,—that if this charge is correct, those instructions were properly overruled. We are of opinion there is no substantial error in this ruling of the court. The evidence shows the north forty acres was in fact the homestead of the appellant. The dwelling house, and all the other buildings, the garden, the orchard, and “all the homestead improvements,” were upon it, and it exceeded in value $1000. The south forty was simply a part of the farm of six hundred and forty acres, and was in nowise differently connected with the north forty than was the forty lying east of that forty. We said in Gardner et al. v. Eberhart et al. 82 Ill. 321: “A farm may, as in this case, consist of several lots of ground, but the statute exempts only the lot so occupied. The court will take judicial notice of the government surveys of the public lands, and that a quarter section of land consists of four forties, each with well defined hounds. If the forty on which the residence buildings are situated does not exceed $1000 in value, it is exempt. (Hill v. Bacon, 43 Ill. 478.) It seems to follow that if the forty so occupied did exceed the value of $1000, the other three forties, or either of them, could be levied upon and sold, without violation of the debtor’s right of exemption. ” The same doctrine had been, in substance, previously announced in Hill v. Bacon, therein cited, and in Aldrich et al. v. Thurston, 71 Ill. 324. We know of no reason why the trustee might not sell the homestead forty first, that can be available in this action. The deed to him conveyed the legal estate, and the power vested in him was broad enough to authorize it, and no equitable proceedings' were interposed to prevent it. It follows, then, inasmuch as the homestead forty did not sell for enough to satisfy the deed of trust, the sale of the south forty was unaffected by the claim of homestead. The balance, therefore, in the hands of the trustee after satisfying Flanagan, was properly paid to appellee, by virtue of his certificate of purchase. The judgment is affirmed. Judgment affirmed. Subsequently, upon an application for a rehearing, the following additional opinion was filed: