Vasey v. Board of Trustees

Citations

• 59 Ill. 188

Syllabus

<p>1. Practice—of the time of taking certain objections. In a bill to foreclose a mortgage, it was alleged the mortgage was given to secure a certain promissory note, which appeared to be signed by four persons, when, in fact, one of the makers signed the note after the mortgage was given: Held, even if there was no allegation to meet the changed character of the note, the objection came too late when made for the first time in the appellate court; it should have been made in the court below, so that, if necessary, the bill could have been amended.</p> <p>3. Allegatioks and proofs—as to the purpose of the mortgage. But the allegation that the mortgage was given to secure that particular note, was substantially true, although it was signed by one of the makers after the mortgage was given. It was the same note, except there was an additional security.</p> <p>3. A faeol partition of land among several tenants in common, to be valid, must be followed up by a several possession.</p> <p>4. Same—presumption. Exclusive possession by one, of a particular part of the estate, accompanied by a denial of the co-tenant’s right to such part, may create a legal presumption of partition.</p> <p>5. Homestead—abandonment. It is not essential to the waiver of the homestead right that there should be a formal release thereof in writing, but the right may be lost by an abandonment of the premises.</p> <p>6. The husband, as the head of the family, has the right to control the residence of his wife and children. Where the husband, with his family, abandons the premises to ruin, and locates elsewhere, he ceases to occupy them as a residence, and such occupancy is necessary to the existence of the homestead right.</p> <p>7. So, where the owner of land, which he occupied as a homestead, executed a mortgage thereon, but without releasing the homestead right formally in writing, and afterwards abandoned the premises without intending to return to them, this was held to be such a waiver of the