Bonnell v. Smith
| Decision Date | 31 January 1870 |
| Citation | 1870 WL 6213,53 Ill. 375 |
| Parties | DAVID T. BONNELLv.WILLIAM SMITH et al. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Alton City Court; the Hon. HENRY S. BAKER, Judge, presiding.
This was an action of ejectment brought by Bonnell against Smith, and afterwards Joshua Neely was also made a defendant. Bonnell claims title under a judgment recovered in April, 1863, against Philip English, and one of the questions presented is, whether English had a homestead right in the premises. The circumstances connected with their occupancy, appear from the following testimony:
Defendant called Bridges, a witness, who testified he knew Philip, and Laura English, his wife; Laura is dead; witness lived near the premises in controversy; that Philip English and his wife moved in the old house on premises in controversy, in January, 1863; Paris Harville was occupying a part of the same also; they stayed there about one week, keeping house while there; while there, Philip built a shanty for himself and his wife to live in, on the premises in controversy, about thirty feet from the old house, and moved into the shanty until Harville gave them possession of the old house entirely, by moving out of it, when Philip moved into the old house; Philip English did not own any other place; witness thought that Paris Harville left the premises in February, 1863; that Philip English and his wife lived in the old house, on the premises in controversy, after Harville left; witness passed along the road frequently, while Philip and wife were living there; Harville had a wife and children also; Philip and wife did not live together long after Harville moved out; witness could not state precisely when it was that Harville moved out of the house; Philip and wife occupied the premises from some time in January, 1863, to the spring of the year, some two months; English was there setting out an orchard on the place in April, 1863; it was his homestead in 1863.
On cross-examination: Witness stated that the shanty was built on the southwest corner of the premises in controversy, some thirty feet from the old house on same; some time in the fore part of March, 1863, and previously, English and wife lived there; they separated some time in the middle of March, 1863, and she never afterward came back to live with her husband; English was back and forth on the place during the summer; Jacob Harville lived there after Philip left, as his tenant.
On re-examination, the witness stated he was certain that Laura English lived on the premises in controversy, after the first of March, 1863; they moved there about the first of January, 1863, and lived there till the middle of March, 1863; he was there frequently after Mrs. English left.
Defendant then proved, by Alex. Sinclair, that Philip English lived on the premises in controversy, but when, he could not say; it was some time after Harville sold out to English, that he lived there in the same house that Harville lived in; he built a shanty on the premises and lived there until Harville left, and then moved into the old house on the place; English stayed there some time after his wife left him; it was in the spring, can not say what time, he kept “batch” in the old house.
On cross-examination, witness stated that he did not recollect when English went to the premises, or when he left, or how long he was there.
The plaintiff then called Paris Harville, a witness, who was sworn, and testified he sold the premises in controversy to Philip English, on the twenty-ninth of December, 1862; gave him the possession on the twentieth day of February, 1863; he built the shanty, which was about thirty feet off from the old house witness was living in; the shanty was erected on the premises; after it was completed, English and wife moved into the shanty and kept house; English left the shanty and moved into the old house when witness left it; Mrs. English left him about the fifteenth day of February, 1863; witness was there after she left and went to her father's; she did not live with him after; she left him five days before witness left the place; English left the place on the tenth of March, 1863, and went to Grafton.
On cross-examination, by defendant, witness testified that English did not, to his knowledge, live on the premises in controversy, after he left; he did not see him there in April; he rented to B. F. Harville, for one year, the place in controversy, and he lived there under English; witness lived three-quarters of a mile west of the place; in January, 1863, he moved in the house witness was living in; witness was to give him possession on the first of March, 1863; English and his wife lived with him, in the old house, one week about the first of January.
Plaintiff then introduced Richard Quinn, who being duly sworn, testified that he lived within one-fourth to one-eighth of a mile of the premises in controversy; Philip English and his wife, Laura, went to the premises about the first of January, 1863; Mrs. English left him once and then came back again, and then she left again and was only gone a few days, then came back and stayed together a short time, when she left the last time, in the last of February, 1863, when she left for good; in the first place, they went into the house with Harville, and English then built a shanty, and he and his wife went into that; after that they moved into the old house on the place, that is, after Harville left it; she left him about three days after Harville left; about the last of March, 1863, English left and went to Grafton; he came back with some fruit trees, and set them on the place in controversy, and boarded with witness while doing so; in April he gave the mortgage; the same day he came back, witness purchased his furniture of him; after his wife left him, he brought his things to witness' house, and left them there when he went to Grafton; witness afterwards bought them.
On cross-examination, by defendant, witness stated that English came with the trees in April, 1863; he boarded with witness while setting them out.
The other facts in the case, are presented in the opinion of the court.
Mr. SETH T. SAWYER, for the plaintiff in error.
Messrs. WARREN & POGUE, for the defendants in error.
This was an action of ejectment, brought to the Jersey Circuit court by David T. Bonnell, against William Smith and Joshua Neely, to recover the possession of twenty-three acres of land, part of the southeast quarter of section twenty-three, in township eight, north range twelve, west, and particularly described in the...
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