dissenting:
As noted in the majority opinion, homestead is a possessory freehold estate, but only if the statutory amount, this case *5,000, is not realized and paid to the person holding such estate from the proceeds of judicial sale. In my opinion the judgment of the trial court assures the holder of the estate that he wiU receive all that he could be entitled to, namely *5,000, accomplishes equity and prevents further needless litigation.
The hen of the judgment obtained by the City National Bank of Metropolis is still viable and attaches to appellant’s real estate over and above the statutory homestead. On remand, the property is subject to be resold at execution sale, at which time Moller will be entitled to receive *5,000 as provided in sections 1 and 9 of “An Act to exempt the homestead from forced sale 9 9 9” (Ill. Rev. Stat. 1967, ch. 52, pars. 1, 9) or else the sale cannot be confirmed. The judgment of the trial court accomplished, in my opinion, the same result and recognizes Moller’s right to homestead by exempting, in the words of section 1 of the act, “[sjuch homestead 9 9 9 from attachment, judgment, levy or execution, sale for the payment of his debts, or other purposes, 9 9 9.” The effect of the trial court’s decree is to treat the execution sale a nullity unless the proceeds of the partition sale satisfy Moller’s statutory homestead in a manner consistent with the act.
While Rice v. United Mercantile Agencies, 395 Ill. 512, 70 N.E.2d 618 (1947), and Klosowski v. Klosowski, 266 Ill. 360, 107 N.E. 634 (1915), are authority for the proposition stated by the majority, they were decided upon entirely different facts and do not require that the equitable result reached here be overturned by adherence to precedent in a completely inapposite factual context. The result reached by the trial court assures Moller his homestead; it also recognizes that plaintiffs were innocent purchasers at a judicial sale and the decree gives effect to the long-established policy of the law of affording stability to judicial sales.