Holterman v. Poynter , 361 Ill. 617 ( 1935 )

The master reported a finding, which the chancellor approved, to the effect that appellants were estopped to claim a homestead because they had directed the sheriff to levy upon and sell the real estate in satisfaction of appellee's judgment. It was also found that subsequent to the sale appellee had paid two years' taxes on the premises, together with about $50 in costs which accrued because of the sheriff's sale.

The majority opinion appears to hold that if a homestead has not been abandoned, or if it has not been waived in strict accordance with the provisions of the statute, no circumstances whatever can exist which will prevent a claim of homestead. In other words, it tacitly holds that the doctrine of estoppelin pais can never be invoked against a claim of homestead, and the doctrine of caveat emptor applies in this case. With the two last mentioned conclusions we are in utter disagreement. If, as was found by the chancellor, appellants directed the sheriff to sell their real estate in preference to their personal property, and appellee became the purchaser and afterwards paid out a considerable sum of money in taxes and costs, an estoppel in pais arose, which ought to bar appellants from asserting a claim of homestead.

The act pertaining to judgments, decrees and executions (Cahill's Stat. 1933, chap. 77, sec. 11,) provides: "The person in whose favor execution is issued, may elect on what property not exempt from execution he will have the same levied, provided personal property shall be last taken." It will be observed that appellants had no right of election except as to property not exempt. Their act in electing to turn the real estate out in preference to their personal property in satisfaction of the judgment debt must be treated as a confirmation of their previous declarations of abandonment of the homestead. Any other interpretation, it seems to us, would sanction the perpetration of a fraud upon appellee, and would, in the language of Cabeen v. Mulligan, 37 Ill. 230, enable debtors to perpetrate frauds upon creditors that could not have been designed by the General Assembly when the Homestead act was adopted. Its provisions were enacted for the purpose of protecting the bona fide right to homesteads and were not intended to operate as a shield to relieve against fraudulent transactions and misrepresentations of the claimant. It is the universal rule, even in States which have statutes prescribing the method by which homesteads may be waived, that equitable estoppel may be invoked, under certain circumstances, to defeat the operation of the Homestead law. 13 Rawle C. L. sec. 119, p. 662.

A debtor may always waive his privilege and consent that his exempted property may be applied to the payment of his debts. (Jensen v. Cannell, 106 Me. 445.) In that case the court held the exemption was waived by the debtor's attorney telling the officer to go ahead. In Ponder v. Webb, 1 Ky. L. 335, it was held that where a debtor informed the officer that if certain property was not levied on he would surrender other property which was exempt, and the officer accepted the offer, the debtor could not afterwards withdraw the surrender by claiming exemptions. In Parsons v. Cooley, 60 Iowa, 268, it was held that where a person who is not living upon premises formerly occupied as a homestead requests a creditor to levy an attachment upon the premises he will be deemed to have abandoned the right to set up any homestead claim as against the attachment. In Church v. First Nat. Bank, 255 Mich. 595,238 N.W. 192, it is said that beyond question one entitled to an exemption in property may, if he sees fit, waive such right in the event of a levy and execution sale. The opinion quotes an expression of Mr. Justice Cooley in another case, as follows: "A person who had induced another to act upon the supposition that a certain state of facts exists, may by such conduct preclude himself from disproving such facts; and we may readily suppose a case in which a woman may so act in reference to lands in which she has a right of dower as to make this principle applicable." Wright v. DeGroff, 14 Mich. 164.

Wilson v. Daniels, 79 Iowa, 132, 44 N.W. 246, was an action to set aside a sheriff's deed after sale upon execution. In the opinion the court said: "He directed the sheriff to levy on the property and sell it on the execution. * * * The fact that the plaintiff directed the levy to be made ought to preclude him from claiming any homestead. It is true that when the plaintiff removed from the house he left some property therein, such as carpets, window shades; and the like, and that in 1879 he filed a claim of homestead in the county recorder's office and had it recorded, and he testifies that he did not intend to abandon his homestead. But this cannot be held to overcome his acts and declarations tending to show an abandonment."

In Maring v. Meeker, 263 Ill. 136, we stated: "It is sometimes said, and is argued here, that a person is not estopped by his silence and omission to give notice of existing rights, but that rule does not apply in a case where a land owner has actively encouraged and induced the injured party to act. 'In the latter case the party making the declaration acted on will be estopped although he may have been ignorant of his true rights. The other party may rely on his representations without further inquiry and act upon the assumption that he is cognizant of his rights and knows the condition of his own title.' " Moore v. Gilmer, 353 Ill. 420, Robbins v.Moore, 129 id. 30, and Cross v. Weare Commission Co. 153 id. 499, announce the same principle.

Where one by his words or conduct willfully causes another to believe in the existence of a certain state of things and induces him to act upon that belief so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the time. Niantic Bank v. Dennis, 37 Ill. 381; Pease v.Ritchie, 132 id. 638.

It is to be remembered that a homestead right is not the only right which the courts regard, and there are rules of law which they will not overturn merely because they are urged to do so in the name of homestead protection. (Brown v. Coon, 36 Ill. 243.) Appellants do not come within the rule as to silence respecting their rights. On the contrary, they tendered the Arcola property and required the sheriff to levy on it. Appellee relied upon their action and made no further attempt to collect from any other property of either of them. Manifestly, the doctrine Of caveat emptor has no application to the facts in this record. The statute exempting homesteads should be liberally construed so as to give the fullest measure of protection under it, (Scogin v. Scogin,337 Ill. 427,) but we think it is clear that under all the circumstances of this case the tendering of the Arcola property was, in effect, a waiver or abandonment of appellants' homestead right therein and thereafter estopped them to assert that right. They gained nothing by returning to the premises after the sale. It might operate as a new claim of homestead as to subsequent liens but it could not affect the prior rights of appellee. Titman v. Moore, 43 Ill. 169.

An estoppel in pais affecting permanent interests in land can only be made available in a court of equity. It cannot be allowed in an action of forcible detainer. (St. Louis StockYards v. Wiggins Ferry Co. 102 Ill. 514; Grubbs v. Boon, 201 id. 98; First Lutheran Church v. Lutheran Church, 316 id. 196.) Complainant was compelled to resort to a court of equity for his relief, and upon the filing of his bill that court acquired jurisdiction to grant the injunctional relief prayed for and also to dispose of all questions arising between the parties, whether legal or equitable, pertaining to the subject matter of the suit and to do complete justice between the parties.McIntyre v. McIntyre, 287 Ill. 544; United Artists Corp. v.Thompson, 339 id. 595.

We think the decree of the circuit court should be affirmed.