delivered the opinion of the Court:
This was an action brought before a justice of the peace, for a trespass to land by cutting timber. The case was appealed to the circuit court. A jury having been waived, a trial was. had by the court by consent, when the court rendered a judgment in favor of appellee, for five dollars and costs.
It appears that appellee entered the land in 1854, and has. occupied it since that time, except a short period when he was absent laboring to earn money to pay his debts, but intending to return again, which he did. It appears that the two tracts lie adjoining, and a part of each is under fence, and was occupied as a homestead by appellee, and that the property was not. worth more than $1000 at the time of the levy and sale.
The evidence shows that one Isaac Garrison recovered a judgment against appellee, on the sixteenth day of July, 1858, before a justice of the peace, for the sum of $16.20, and costs of suit; that an execution was issued and returned “ no property found,” when a transcript was filed in the circuit clerk’s office of Marion county; that on the sixteenth day of June, 1859, an execution was issued on the transcript, directed to the sheriff to execute; that it was levied on the S. E. N. E¼ of section 2, T. 1, N. R. 4 E. 3 P. M. The land was sold by the sheriff and Garrison became the purchaser, and no redemption having been made, he afterwards received a sheriff’s deed for the same.
Appellant went upon the -land and cut a number of small trees. While so engaged, appellee saw him and forbid his cutting the timber, but he claimed to have purchased the land of Garrison. It was proved that, when the deputy sheriff went to levy the execution, appellee said he had no property to surrender on the execution; that the officer asked if he did not have land, and he replied he had the land he lived upon, and the deputy sheriff says that he asked appellee to turn it out, and he assented, and gave the numbers. On the other hand, appellee swears that the deputy sheriff only asked for the numbers, which he furnished.
The judgment in this case must be affirmed. Appellant has in no manner connected himself, so far as we can see, with Garrison’s title, either as his grantee, or his servant or employee. Even if Garrison acquired title, that did not authorize appellant to enter upon the land in the possession of appellee, and to cut timber. He does not justify, in any manner, under Garrison’s title, and his mere declaration that he had purchased from Garrison, does not prove that fact.
But inasmuch as other questions have been presented and argued by counsel, we choose to dispose of them. The evidence shows that this land was a part of appellee’s homestead, when the levy and sale were made, and the whole property was worth less than $1000; and there is no pretense that the homestead right was waived or released in the mode prescribed by the law. In the case of Green v. Marks, 25 Ill. 221, it was held that the law exempted the homestead of the debtor from levy and sale on execution, and they created no lien on the homestead while the debtor was in a position to claim the benefits of the law.
In the case of Stevenson v. Marony, 29 Ill. 534, it was held that wdien the homestead is sold, and the debtor is in a position to claim the benefit of the act, he may have the levy and sale set aside. And in the case of Fishback v. Lane, 36 Ill. 437, it was held that the grantee of the debtor held the land, as against a prior judgment, which would have been alien had it not been for the homestead law; and that case was based upon the prior case of Bliss v. Clark, but not reported until the 39 Ill. 590, and upon Green v. Marks, supra. It is manifest, from those cases, that there was no lien created on this homestead by issuing the execution, the levy or the sale, and that the sale was void, and passed no title to Garrison. He or appellee could have applied to the court and had the levy and sale set aside, as nothing was acquired thereby.
It is urged that appellee, subsequently to the sale, abandoned •the premises by removing from them for some months, and by leasing the place. He swears he only left to earn money to pay his debts, intending to return and continue it as his home, which he did, and nothing is found in the record to rebut this evidence. But even admitting that he did not intend to return, how is the case changed ? If the levy created no lien, and the sale transferred no title, how could appellee’s subsequent abandonment render this void sale valid ? How could it impart vigor to the sale and conveyance,by the sheriff, which was unauthorized, and conferred no title ? We are at a loss to perceive how appellee’s position could be thus changed. Failing to perceive that appellant had shown any defense, we must hold the court below acted correctly in rendering the judgment, and it must be affirmed.
Judgment affirmed.