Eldridge v. Pierce

Citations

• 90 Ill. 474

Syllabus

<p>1. Pleading—as to homestead right. Where a complainant, seeking to foreclose a mortgage, in his bill alleges that the premises, at the time of the execution of the mortgage, were occupied by the mortgagor and his wife and family as a homestead, and seeks to avoid the right by charging a subsequent abandonment of the premises after the execution of a second mortgage, he can not be allowed to urge that the answer of the second mortgagee does not set up such facts as to clearly show the existence of the mortgagor’s right of homestead. The second mortgagee may act on such admission in the bill, and controvert the question of abandonment and its effect on the rights of the parties.</p> <p>2. Where the complainant undertakes to anticipate a defense by alleging a state of facts designed to show its invalidity, he will relieve his adversary from specifically setting up his defense, and authorize him to accept the issue presented and limit his allegations and proofs to that issue.</p> <p>3. Homestead—nature of the right. The statutes relating to homesteads in force prior to July 1, 1873, created no new estate, but simply an exemption, and when the holder of the homestead conveyed without relinquishing the exemption, he transferred the fee, but the operation of the deed was suspended until the premises were abandoned, or possession surrendered,—and such exemption did not affect the rights of heirs or devisees.</p> <p>4. By the statute which took effect July 1, 1873, an estate of homestead is created—an estate before unknown to the law. This new estate is limited only as to its value, being §1000, and not by any specific degree of interest or character of title in the particular property to which it attaches. If the property does not exceed $1000 in value, the estate embraces the entire title and interest of the householder therein, leaving no separate interest in him to which liens can attach, or which he can alien distinct from the estate of homestead. If it exceeds this