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First Nat. Bank & Trust Co. v. Sandifer

APRIL 20, 1970.

FIRST NATIONAL BANK AND TRUST COMPANY OF ROCKFORD, PLAINTIFF-APPELLEE,

v.

NORA LEE SANDIFER, A/K/A NORA LEE WILEY AND NORA LEE BROWN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Judgment affirmed.

JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.

Defendant seeks reversal of the judgment of the trial court wherein an order was entered denying the defendant's motion to set aside a sheriff's sale of certain real estate.

Prior to October 1, 1960, the defendant resided and was contract purchaser of real estate commonly known as 901 South Court Street, Rockford, Illinois. On October 1, 1960, she married James Sandifer and thereafter, defendant and her husband resided at the premises.

Apex Lumber and Supply Co. (Apex) did some renovation work on the house in question and, on September 28, 1964, defendant executed a promissory note, which contained a confession clause, payable to Apex, in the amount of $4,030. Some time shortly thereafter, although the actual date is in dispute, Apex assigned the note to the plaintiff, First National Bank and Trust Company of Rockford.

On June 19, 1966, James Sandifer, while still residing with the defendant, died. After his death, defendant continued to reside at the premises and, later that year, received a warranty deed conveying the premises to her.

On August 16, 1968, a judgment by confession was entered against the defendant for the sum of $1,913.28. Thereafter, the sheriff of Winnebago County sold defendant's real estate to plaintiff for the sum of $2,000 and issued a certificate of purchase to the plaintiff. Defendant is appealing from an order denying her motion to set aside the above sheriff's sale.

On appeal, defendant claims that she was a householder, having a family, and was entitled to a homestead exemption as to the premises in question.

Section 1 of the Homestead Act (Ill Rev Stats 1967, c 52, § 1) insofar as material here, is as follows:

"Every householder having a family, shall be entitled to an estate of homestead, to the extent in value of $5,000, in the farm or lot of land and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence; . . . ."

In Rock Island Bank & Trust Co. v. Lamont, 361 Ill. 432, 198 NE 430 (1935), at page 434, the Court stated:

". . . Three conditions must exist under this statute in order that a homestead estate be created: (1) The claimant must be a householder; (2) he must have a family; and (3) the premises must be occupied as a residence. If any of these requisites is wanting the law will not create an estate of homestead."

See also, Rock v. Haas, 110 Ill. 528, 533 (1884); McGookey v. Winter, 381 Ill. 516, 525, 46 N.E.2d 84 (1943); Klebba v. Klebba, 108 Ill. App.2d 32, 36, 246 N.E.2d 681 (1969). Some title, no matter what its extent, is also necessary to sustain a homestead estate. Sterling Savings & Loan Ass'n v. Schultz, 71 Ill. App.2d 94, 111, 211 N.E.2d 53 (1966).

The question of whether the defendant is entitled to a homestead exemption is largely a matter of statutory construction as homestead rights were created by statute and not by common law, Petition of Lehman v. Cottrell, 298 Ill. App. 434, 440, 19 N.E.2d 111 (1939). From the facts, it is clear that the premises were occupied as a residence; it therefore must be determined whether the defendant was a householder and whether she had a family as contemplated by the Act.

The word "householder," within the context of the Act, has been the subject of many interpretations prompted by the analogy which heretofore existed between the term "householder" and that of "head of the family." Within the Act, the term "householder" appears, while the phrase, "head of the family," does not. Defendant has cited authorities which hold that the Act does not require that the householder be the head of a family but that he shall have a family. (Rock Island Bank & Trust Co. v. Lamont, supra, at p 436; McNichols v. McNichols, 299 Ill. 362, ...


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