Mix v. King

Citations

• 55 Ill. 434

Syllabus

<p>1. Homestead—whether the wife may have a remedy in respect thereto, in the life time of her husband. Where the husband has abandoned his wife, leaving her in possession of the homestead, but failing to provide her any support, if she be wrongfully ousted from the possession she is entitled to a standing in court, to maintain a suit in her own name, for the assertion of her right in respect to the homestead, even during the life time of her husband.</p> <p>2. Same—effect of a judgment in ejectment—omission of the wife to plead. Husband and wife executed a mortgage upon premises occupied by them at the time as a homestead, but there was no release of the homestead right. Afterwards, the husband abandoned his wife, leaving her in possession of the homestead, but providing her- no means of support. A sale of the premises was had, under a power in the mortgage, and the purchaser thereat subsequently brought ejectment against the husband, and recovered a judgment, and thereupon ousted the wife- from her possession by force : Held, the judgment in ejectment, so far as the right of homestead was concerned, was a nullity; and although a writ of possession issued upon such judgment would be sufficient, legally, to effect the purpose of expelling the wife from the premises, yet it would not impair or destroy the homestead right.</p> <p>3. Nor would the right of the wife, in such case, to assert her claim to the homestead, be at all impaired by her omission to plead it in the ejectment suit, as she was not a party thereto.</p> <p>4. Same—remedy of the wife in such case. In such case, the judgment in ejectment against the husband would be a bar to any remedy at law in behalf of the wife, to recover the possession under her claim of the homestead right; so she has her remedy in chancery against the party who ousted her under the judgment, to restore her to the proper enjoyment of that right.</p> <p>5. Same—of the proper adjustment of the rights of the parties. Upon bill in cha