Feldes v. Duncan , 1888 Ill. App. LEXIS 322 ( 1888 )

Upton, J.

This action of trespass was commenced in the Circuit Court of La Salle county by appellee against the appellant for the tearing down and conversion of appellee’s dwelling-house, claimed by him to have been at the time his homestead.

This dwelling-house was erected by the plaintiff on lands, the title to which was in the La Salle priests of the congregation of the mission, and about one hundred rods from a coal-shaft, then being worked by the Caledonia Coal Company, and being under a contract or lease with the priests of the congregation of the mission in whom was the fee of the land. The appellee was a coal miner, and had been such all his business life, and had a family consisting of wife and children residing with him.

John Duncan, a brother of the plaintiff, and one William Lumsden, constituted the Caledonia Coal Company, and bv some agreement or contract with that company, and with the full knowledge of the priests of the congregation of the mission, the plaintiff, in the early part of the year 1881, erected the house in question, moved into and occupied the same as a homestead until some time in December, 1884, when, soon after the death of his wife, he removed with his children and a portion of his household effects to La Salle, to the house of his married daughter, so that she could take care of his children. When he thus removed from his home, he left in the house in question “a stove, cooking utensils and two beds, a sewing-machine, a bed and bedding for a man that was looking after the house. The house foundations were posts imbedded in the ground about two and one-half feet, and it was worth, according to the testimony, from §125 to §500.

It was levied on by virtue of a special execution issued upon a judgment in attachment against appellee; sold at execution sale, bid off by and sold to appellant at that sale, and by him the main portion of the house was torn down and removed to La Salle, and converted to the use of appellant in 1885, in the fall or winter of that year.

It seems that the Caledonia Coal Company operated the coal mine until some time in the year 1883, when the company suspended, and the mine was worked by the Co-operative Coal Company, which failed in the fall of 1883, and from that time until the spring of 1884 it was operated by the priests of the congregation of the mission.

In the spring of 1884 the machinery was all taken away from the coal-sliaft, coal-mining ceased, and the shaft filled with water, and so remained at time of hearing below. On the hearing in the court below, evidence was introduced on the part of the appellant tending to show that upon the removal of the machinery from the coal shaft-all business was suspended at those mines, and as a consequence, there was no emploj-ment for the miners there, and perhaps would never be again, and that appellee had so stated, and had offered to dispose of the house in question for that reason; and stating, as claimed in the testimony, that he should never return to reside in said house again, as there was nothing for him there to do and never would be again, all of which was denied by the appellee, and it was insisted in the court below, and is now claimed, that the appellee had abandoned that house as his homestead, if indeed he ever had one therein.

In the court below the issues joined presented the question of the right of homestead in and abandonment of the house in question by the appellee as such homestead, and was submitted to a jury, who found a verdict for appellee and assessed his damages at §250, and judgment having been rendered on that verdict, the case is here by appeal.

Two questions are presented on the facts in this record : First. Had appellee a right of homestead to the house in question of such a nature as could be set up by him, under the homestead laws of this State, to exempt it from attachment, judgment, levy or execution sale, for the payment of his debts. Second. If such exemption ever existed, was it abandoned or waived by the appellee.

First. Sec. 1, Chap. 52, R. S., provides that every householder having a family shall be entitled to an estate of homestead in the farm or lot of land and buildings thereon owned or lawfully possessed,* by lease or otherwise, and occupied by him or her as a homestead, etc.

This statute was designed for the benefit of the debtor, and should be liberally construed, so as to effect and not thwart its object and policy, and, being remedial in its nature and effect, must be so construed.

Under the homestead act of 1851, which provided that the lot of ground and the buildings thereon occupied as a residence and owned by the debtor should be ex.empt, etc., although the language of the act seemed to require the debtor to be the owner of the property, it was held that the debtor \vas not required to own an estate in fee in the property in order to claim the protection of the statute. Deere v. Chapman, 25 Ill. 610. It was then said: “The object of the law clearly was to secure the head of the family in the possession and enjoyment of the lot and buildings for the maintenance and shelter of himself and family as a home, without any special regard to the extent of the estate or title by which he owned it.”

The first section of the present homestead act is far more liberal as to the ownership of the land, or the right or interest of the person claiming such homestead, than was the old statute under which the decision cited was rendered. The language of the present statute is that “every householder having a family shall be entitled to an estate of homestead to the extent in value of one thousand dollars in the farm or lot of land and buildings thereon, owned or rightfully possessed, by lease or otherwise, by him as a residence,” etc.

Under the present act of homestead it has been held, and as we think rightfully, that the holder of any possessory interest in lands, without regard to the extent of such title, may invoke the aid of the statute. Watson v. Saxer, 102 Ill. 585.

That the appellee in the case at bar was a householder having a family occupying and owning a house or building not exceeding in value 81,000, situate upon a lot of land rightfully possessed by him, by lease or otherwise, and occupied by them as a residence prior to December, 1884, we think is made' manifest by the evidence upon this record. Tested by the adjudications and principles to which we have referred, he had the legal right at that time to claim the protection of the statute to the property so occupied by him, which is the property now in question.

Second. Was it abandoned or waived by the appellee? In the case of Potts v. Davenport, 79 Ill. 454, it was held-that the term “ occupied as a residence ” in the statute exempting homesteads, means that the premises shall be the home of the party claiming a homestead right, and that temporary absence by the party and his family, without acquiring another home, is not an abandonment of the right. Whether premises occupied by a debtor and his family when he has removed from them, and after the recovery of a judgment against him returned thereto, was his home during his absence was a question of fact to be determined by the jury from all the circumstances in the case.

It is needless to restate the facts in this case as to the question of abandonment, having already stated the same in substance. The question, in view of all the facts and circumstances in this record, is not free from difficulty, we confess, but it was one peculiarly within the province of the jury to determine, as we have seen; and after a careful inspection of this record we can not say they were not justified in finding there was no abandonment of the homestead right of appellee to the property in question.

It is insisted also that the verdict is excessive. It is true the damages awarded were somewhat large, but in view of all the evidence we think the jury were justified in the amount of the verdict rendered.

The refusal to admit the lease by the trial court, if the ruling was not correct, was not hurtful to appellant, and the error complained of as to the admisssion of other evidence was not sufficient to authorize us to set aside the verdict.

It is also insisted by the appellant that the trial court erred in refusing to give to the jury the second instruction asked for by the defendant below; and that the court also erred in modifying the third instruction asked for by the defendant, and in refusing the fifth and ninth instructions.

We have carefully examined these instructions and the objections made thereto, and are of the opinion that there is no error in the ruling of the court below in that regard, and finding no substantial error in this record, the judgment of the court below must be affirmed. Judgvnent affirmed.