Buck v. Conlogue

Citations

• 49 Ill. 391

Syllabus

<p>1. Homestead exemption—abandonment. B and wife executed to C a conveyance of their homestead, but the deed did not operate to release the homestead right. B continued in the occupancy of the premises after the execution of the deed, under a lease from 0, and paid rent therefor. Subsequently B died, leaving a wife and one child, who remained in possession for a time, when the widow intermarried with one M and removed to another town, taking the child with her, and leased the premises to A, appropriating the rents to the education of the child. Held, in an action of ejectment brought by C against A, that the homestead right was lost by act of B’s widow in abandoning the possession, and that C was entitled to a recovery.</p> <p>2. Same—exemption is not lost—by the act of the grantor in taking a lease from his grantee. By the mere act of B in taking a lease of the premises from C after the conveyance, and paying rent therefor, no forfeiture was incurred of the right to assert the homestead exemption, either on the part of B in his lifetime, or his widow and child after his death, while they continued to occupy the homestead.</p> <p>3. Same—abandonment. But B’s widow, by her intermarriage with M, and removal with her child to a different town and taking up her residence upon premises owned by her husband, acquired a new home, and by its acquisition lost the right of homestead in the premises.</p> <p>4. Same—intention of returning must be clear. In such cases, the proof of an intention on the part of the claimant to return and occupy the homestead, must be clear and satisfactory, in order to preserve the right.</p> <p>5. Former decisions. The cases of Booker v. Anderson, 35 Ill. 67 ; Moore v. Dunning, 29 ib. 130; White v. Clark, 36 ib. 285 ; Moore v. Titman, 43 ib. 169, and Cubeen v. Mulligan, 37 ib. 230, cited and considered, the last two cases being held to fully govern the present one.</p> <p>6. Same—abandonment by the widow—deprive the children of the right. After