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Wabash Production Credit Ass'n v. Stroup

JULY 8, 1969.

WABASH PRODUCTION CREDIT ASSOCIATION, A CORPORATION, PLAINTIFF-APPELLEE,

v.

RUSSELL R. STROUP, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Marion County; the Hon. DONALD H. DAILEY, Judge, presiding. Reversed and remanded.

MORAN, J.

On the 20th day of June, 1967, appellants filed a petition in the Circuit Court of Marion County alleging:

"1. That Judgment by Confession was taken by Plaintiff vs. Defendants on the 28th day of October, 1965.

"2. That a sale based on said Judgment by Confession and Execution levied thereon was held on the 21st day of June, 1966, the same being designated as the Sheriff's Judgment and Execution Sale.

"3. That said sale of said premises then and there belonging to these defendants is described as follows, to wit; in so far as said premises effect the homestead rights of these defendants:

"4. That at no time during any of said proceedings concerning the judgment by Confession and Execution thereon, the petition to open up said judgment, etc., or the order for sale of said premises, was any assignment of homestead interest ever made or set off to these defendants.

"5. That the premises sold, or a portion thereof, constituted the homestead of these defendants, W.H. Smith and Nellis Mae Smith, husband and wife, respectively, and on which these said defendants have lived and resided for the past 21 years.

"6. That these defendants are, and each of them is, entitled to a homestead interest in said premises in the principal sum of $5,000.00 each of a total of $10,000.00.

"7. That said homestead interest should be set off to these defendants prior to the making of a Sheriff's Deed to the purchasers of said premises at said Judgment and Execution Sale.

"Wherefore these defendants pray this honorable Court that the homestead interest, including a house, home, or residence of these defendants together with the outbuildings and some one acre of ground be awarded to and set off to these defendants as and for their homestead right as made and provided."

After a hearing the trial court found that appellants were entitled to a total homestead interest in the property in question in the amount of $5,000; that the rental value of said property was $50 per month and that "said value of $50.00 per month be and is hereby fixed as a charge against said exemption as and from June 21, 1966."

Defendants appeal, contending "that they are entitled to have said $5,000.00 homestead set off unto them out of the forty (40) than 15 years."

Appellee has filed no brief in this court.

Sections 10, 11 and 12 of the Homestead Act, (Ill Rev Stats ...


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