Redfern v. Redfern

Citations

• 38 Ill. 509

Syllabus

<p>1. Homestead—of the terms by which, it can he released. In order that a deed shall pass the homestead right of the grantors, it must contain a special release of that right. Where the homestead is not specifically named as conveyed, no general language in the deed, though it comprehend every claim, interest and estate, of whatever description, at law, or in equity, in express terms, will pass the right, or estop the householder from asserting it as against any one claiming under the deed.</p> <p>2. Same.—what constitutes the head of a family. Although the husband may have obtained a divorce from his wife, yet, there being minor children of whom he has the care and custody, the divorce does not change his position, but he would still remain the head of the family, and entitled to occupy the homestead as such.</p> <p>3. Same—relative rights of husband and wife. Whatever right the wife may have in relation to the homestead, it is subordinate to the right of the husband while he lives and continues to be the head of the family and to occupy the premises.</p> <p>4. So, after a divorce between the husband and wife, if the latter acquires the fee in the premises constituting the homestead, from the grantee in a deed executed by her and her husband prior to the divorce, which did not operate to release the homestead right, she will still hold subordinate to his right of homestead, there being minor children of whom he retains the care and custody.</p> <p>5. Ejectment—whether the manner of obtaining possession may be brought in question. Although a defendant in ejectment may have acquired the possession of the premises by a forcible entry therein, that can not be brought in question in this action.</p>