Buck v. Conlogue

Mr. Justice Walker

delivered the opinion of the Court:

This was an action of ejectment, instituted in the La Salle Circuit Court, by appellee, to the June term, 1866, against appellant, for the recovery of lots 9 and 10, in block 94, in the city of La Salle. The plea of the general issue was filed, and a trial had at á subsequent term of the court, without a jury, by consent of the parties, which resulted in a judgment in favor of plaintiff, and to reverse which defendant brings the case to this court by appeal.

On the trial in the court below appellee read in evidence a deed for the property in controversy from George H. Buck and wife to appellee, which bears date on the 26th day of January, 1868. It appears to have been duly acknowledged, and the wife released her dower in the premises, but there was no release of the homestead right by the grantors. It further appears that George H. Buck was in the actual possession of the premises at the time the conveyance was made; that Buck and family resided upon and occupied the premises before and at the time of the conveyance, as a homestead, and that he rented of appellee and paid him rent on several occasions for the use of the property; that he so continued to occupy the property until his death, and his widow and minor child continued to occupy it as a home after his death vuntil she intermarried with one Morse, when she removed to Sterling, taking her infant child with her; that she rented the property to a tenant, and has applied the rent to the education of the child, who is a daughter, and was twelve or thirteen years old at the trial in the court below.

It further appears from the testimony of appellant, that it has been the intention of Mrs. Morse to return to reside upon the premises. It also appears that her husband owns a house in Sterling and that they reside in the same.

It is urged in favor of a reversal, that Mrs. Morse and her daughter are entitled to hold the premises as a homestead, and that appellant, being her tenant, may show and rely upon that fact as a bar to a recovery. That George H. Buck in his lifetime. and until the sale of the premises, had a right to insist upon the homestead, there seems to be no doubt. But whether he still retained it after the sale and receiving a lease and paying rent for the premises presents a different question. In the case of Booker v. Anderson, 35 Ill. 67, where a debtor had executed a deed of trust with a power of sale, but neither he nor his wife had relinquished the homestead, and after the maturity of the debt the premises were sold under the power contained in the deed of trust and the creditor became the purchaser, and the debtor leased the premises constituting the homestead for a year from the purchaser, and the latter having brought forcible detainer to recover possession, on a bill filed to enjoin that suit, it was held that inasmuch as there had been no release of the homestead so as to bar its assertion, it might be claimed and enforced notwithstanding the lease and payment of rent. So, in this case, the wife did no act that then ' barred her from asserting her right of homestead after her husband’s death,'and she continued to hold the right from that time until her subsequent marriage and removal to reside with her husband at Sterling. The execution of the deed by the husband and wife without releasing the homestead right, or the lease and payment of rent by the husband, did not prevent them in his lifetime, or his wife and child after his death, from claiming the statutory privilege.

Although the right of homestead was retained by Mrs. Morse after the death of her former husband, she undoubtedly, by her subsequent marriage, removal to, and residence with her husband in Sterling, abandoned it. The length of time that had elapsed after her removal to Sterling does not appear, but the evidence shows that her husband owns property there and resides upon it with his wife and family. And there is no evidence in the record from which it can be inferred that she and her husband, at the time of her removal to Sterling, had any intention of returning to La Salle to reside, or that they, at any time prior to the trial below, had any such fixed and settled purpose. It is true the witness says she had such . a design, but when it was to be executed and carried into effect does not appear. Such loose, indefinite purposes are not sufficient to preserve the right where the claimant is residing at a different place and on other premises. Moore v. Titman, 43 Ill. 169. In Moore v. Dunning, 29 Ill. 130, it was held that the abandonment by the husband of his home and wife and family did not prejudice their right to claim the benefits of the act if they still continued to occupy the homestead; and to the same effect is White v. Clark, 36 Ill. 285. On the contrary, it has been uniformly held, that where the husband removes from the homestead with his family and acquires another home, the right is lost. Moore v. Titman, supra, and Cabeen v. Mulligan, 37 Ill. 230. These last two cases fully govern this, as the evidence of the abandonment by the widow is as clear and satisfactory as it was in those. From the evidence in the case we are satisfied that there was such an abandonment by the widow as precludes her from asserting the right. Her husband’s home is her home, and she cannot insist that she has not acquired a new one; and by its acquisition she lost the right of homestead.

But the question still remains to be determined whether the daughter, by the mother’s marriage and abandonment of the homestead, lost the right to insist upon the benefit of the statute. In the case of Wright v. Dunning, 46 Ill. 271, it was said, after the death of the husband, the widow, being under no disability, may abandon the homestead precisely as could the husband. Whenever it appears that it has ceased to be her home and she has acquired another place of permanent abode, she thereby loses all right to claim the statutory privilege ; or even if she abandons it with the intention of not returning to it again as her home, the right would be lost. But if, from sickness or other necessary cause, she were to leave temporarily, with the intention of again returning, it would be otherwise.

We have seen that the mother in this case had acquired a new home, and abandoned the property in controversy as a residence, and had thereby lost the right to insist upon the statute. And as the father, as the head of the family, may abandon the homestead so as to deprive his wife and children of the right, for the same reason, where the mother becomes the head of the family, she, by abandoning the homestead, would in the same manner deprive the children of the benefit of the law. After the death of the father the mother becomes the protector of the children, and where she permanently removes from. the homestead, or acquires a new residence, it must.produce the same effect upon the rights of the children, under the act, as if the abandonment had occurred while under the protection of the father. The mother having acquired a new home and abandoned the old one, it follows that appellant has no right to invoke the statute as a defense.

The judgment of the court below must be affirmed.

Judgment affirmed.