APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
R. BARRETT, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Plaintiffs, John Skach and George Javaras, filed a complaint for partition of certain real estate against defendants, Patricia Heakin and unknown owners, alleging that each had acquired title to an undivided one-quarter interest in the property through a sheriff's deed. After an evidentiary hearing and argument, the court entered an order finding that plaintiffs owned a 50% interest in the subject property and were entitled to partition. On appeal, defendant Heakin contends that the entry of the partition judgment was erroneous because plaintiffs did not have any valid interest in the subject property. This contention, in turn, is premised upon defendant's assertion that the sheriff's sale, and deed thereunder, of an undivided one-half interest in the premises without setting off defendant's homestead interest was void. Alternatively, defendant argues that the sale of the premises without actual notice violated due process of law, and that the court erred in not allowing redemption from the sale notwithstanding the expiration of the redemption period.
The facts adduced at trial are largely a matter of public record and the following chronological sequence of events are undisputed by the parties. Prior to April 18, 1968, defendant, Patricia Heakin, and her husband, Frank Heakin, were the owners of the subject property as joint tenants. On April 18, 1968, judgment was entered against Frank Heakin in a case entitled "First State Bank of Harvey v. Frank A. Heakin, No. 68 M6 480" in the amount of $3,831.79. A memorandum of this judgment was recorded with the Cook County Recorder of Deeds on November 22, 1968. On December 4, 1968, an assignment of judgment, dated June 1, 1968, from First State Bank of Harvey to Henry F. Okleshen, was filed with the clerk of the circuit court. On February 13, 1969, a general execution writ was issued by the circuit court clerk and was received by the sheriff on February 17, 1969. This writ was captioned "Henry F. Okleshen v. Frank A. Heakin, Case No. 68 M6 480," showing the amount of judgment as $3,831.79.
On February 10, 1969, Frank Heakin conveyed by warranty deed to his wife, defendant Patricia Heakin, his undivided one-half interest in the property. The deed was recorded on February 14, and contained the following recital: "The grant or * * * hereby releasing and waiving all rights under and by virtue of the homestead exemption law of the State of Illinois." Defendant did not join in the conveyance.
On March 15, 1969, a summons, captioned "Henry R. Okleshen v. Frank A. Heakin, No. 68 M6 480," was directed to three commissioners to appraise homestead. The summons recited that the premises described were the property of Frank A. Heakin and that a homestead was claimed as exempt from execution. The premises were valued by Henry Okleshen in excess of $5,000. *fn1 On the same date, the commissioners filed their report which stated that the premises could not be divided without injury to the interests of the parties, but failed to appraise the value of the premises in excess of $5,000. Also, on the same date, a sheriff's notice of sale was issued, reciting that a writ of execution was issued in Case No. 68 M6 480 in favor of Henry F. Okleshen and against Frank A. Heakin for the sum of $3,831.79, and stating that unless Frank A. Heakin would pay within 60 days either the surplus over and above the $5,000 homestead on the amount of the commissioner appraisal or the amount of surplus due on the writ of execution plus costs, the premises would be advertised and sold. On July 22, July 29, and August 5, 1969, a notice of sheriff's sale was published in the Chicago Daily Law Bulletin reciting that a writ of execution issued in Case No. 68 M6 480 in favor of Henry F. Okleshen, plaintiff, and against Frank A. Heakin, defendant.
A sale of the husband's undivided one-half interest in the premises was conducted by the sheriff of Cook County and a certificate of sale was issued to Henry Okleshen on August 19, 1969, for a bid of $4,321.67. On the same date, Okleshen assigned his certificate of purchase to plaintiffs, John Skach and George Javaras, each acquiring a purported undivided one-half interest. There being no redemption from the sale, a sheriff's deed was issued to John Skach and George Javaras on August 20, 1970.
On November 22, 1971, plaintiffs filed a complaint for partition naming as defendants Patricia M. Heakin and Unknown Owners. Through the sheriff's deed issued in their name, they claimed a 50% interest in the property. The validity of the sheriff's deed was traversed by defendant and the cause set for trial. At trial, in addition to the above-mentioned documentary evidence, Frank Heakin testified that he has resided upon the subject property since 1958 with his wife, Patricia Heakin. At the time of trial the property was encumbered with a mortgage which both he and his wife continued to pay. On plaintiffs' objection, no testimony was allowed as to the value of the property. At this point, defendant's attorney made an open court declaration and offer to tender full payment of the judgment plus interest to date. Plaintiffs refused the offer.
After hearing the evidence presented and the arguments of counsel, the trial court entered an order finding that: Frank Heakin was not a necessary party to the litigation; *fn2 the lien of judgment attached to the property before the conveyance to defendant; all process and proceedings resulting in the sheriff's sale and deed to the plaintiffs were valid; and that plaintiffs owned a 50% interest in the property and were entitled to partition.
It is defendant's position that she had a homestead interest in the entire premises which was not terminated by her husband's waiver of his homestead rights in his conveyance to her. Since she possessed a homestead interest in the entire premises at the time of the sheriff's sale, and since the premises were sold on execution for less than the amount of the homestead exemption, defendant argues that the sale was absolutely void. Being void ab initio, plaintiffs had no title to the premises and therefore could not maintain a suit for partition.
Plaintiff's position is that defendant's husband, not defendant, was entitled to the homestead exemption in the subject property at the time the judgment lien attached, and that the husband's conveyance to defendant released and waived the homestead exemption, thereby conveying to defendant his undivided one-half interest subject only to the valid judgment lien. Since the husband's homestead exemption was extinguished, there was no need to set off homestead at the sheriff's sale, and accordingly, plaintiffs acquired good title by virtue of the sheriff's deed and are entitled to partition.
The threshold question is that of homestead. On November 22, 1968, while defendant and her husband were owners of their family residence in joint tenancy, a memorandum of the judgment against defendant's husband was filed with the recorder of deeds of Cook County. At that time, the premises were within the purview of section 1 of the Homestead Act (Ill. Rev. Stat. 1967, ch. 52, par. 1.), which, inter alia, provided:
"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; and such homestead, and all right and title therein; shall be exempt from attachment, judgment, levy or execution, sale for the payment of his debts, or other purposes, and from the laws of conveyance, descent and devise, except as herein after provided * * *."
• 1-3 Based upon certain language contained in Voss v. Rezgis, 343 Ill. 451, 454, 175 N.E. 799, defendant urges that she jointly held the homestead estate with her husband in the entire property, and that her joint interest could not be altered by the acts of her husband. It is sufficient to note that in Johnson v. Muntz, 364 Ill. 482, 487-88, 4 N.E.2d 826, the court stated that its previous statement in Voss was inaccurate, it being the right of occupancy and not the estate of homestead which is jointly vested in the husband and wife. The court further explained that mere ownership does not create an estate of homestead and that two separate homestead estates cannot co-extensively exist in the same premises at the same time. If the husband is the householder and is living and residing with his wife on premises owned by them, either as joint tenants or tenants in common, the homestead estate is vested in the husband alone. (Johnson v. Muntz; DeMartini v. DeMartini, 385 Ill. 128, 52 N.E.2d 138.) Clearly, then, prior to February 10, 1969, it was defendant's husband who was entitled to the estate of homestead. Equally clear is that by virtue of the husband's warranty deed, dated February 10, 1969, expressly waiving and releasing homestead, defendant became the householder in whom the homestead estate was vested. Ill. Rev. Stat. 1967, ch. 52, par. 4; DeMartini v. DeMartini.
From this basic premise, however, we are not necessarily led to plaintiffs' conclusion that the deed operated to convey to defendant the husband's undivided one-half interest in the property subject only to the valid and enforceable judgment lien. For, as we view the record, the validity of the judgment lien has not been established by plaintiffs. In this State, it is well established that a judgment is not a lien upon the property to the extent ...