Kimbrel v. Willis

• Decision Date: 03 February 1881
• Citation: 97 Ill. 494,1881 WL 10431
• Parties: GEORGE W. KIMBRELv.HUGH W. WILLIS.
• Court: Illinois Supreme Court

97 Ill. 494

1881 WL 10431 (Ill.)

GEORGE W. KIMBREL

v.HUGH W. WILLIS.

Supreme Court of Illinois.

Filed at Mt. Vernon Feb. 3, 1881.

WRIT OF ERROR to the Circuit Court of Jefferson county; the Hon. C. S. CONGER, Judge, presiding.

Messrs. GREEN & CARPENTER, for the plaintiff in error. Messrs. TANNER & WILBANKS, for the defendant in error:

When the householder ceases to have a family, his homestead estate ceases. Revalk v. Kræmer, 8 Cal. 66; Gee v. Moore, 14 Id. 172; Cooper v. Cooper, 24 Ohio St. 488.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill in chancery, filed by the plaintiff in error, to set aside a sale under execution, on August 14, 1878, of a certain forty acres of land in Jefferson county, of the value of from $200 to $400, on the ground that it was his homestead, and as such was exempt from the sale.

It is solely upon the point of having a family at the time of the judgment and execution sale, as the case is presented, that the question of homestead right is made to depend.

Sections 1 and 2 of the Homestead act are as follows:

Ҥ 1. That every householder having a family shall be entitled to an estate of homestead, to the extent in value of $1000, in the farm or lot of land and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment, judgment, levy or execution sale for the payment of his debts or other purposes, and from the laws of conveyance, descent and devise, except as hereinafter provided.

§ 2. Such exemption shall continue after the death of such householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child becomes twenty-one years of age; and in case the husband or wife shall desert his or her family, the exemption shall continue in favor of the one occupying the premises as a resident.”

The proofs show the plaintiff to have been the owner of the land; that he moved thereon some twenty-six years ago; that at that time he had a wife and eleven children; that his wife died about eighteen years since; that his children had all reached their majority, the youngest two or three years previously. He says that he never removed his household goods from the place; that for the last four or five years he had rented the land most of the time; that he had no team, and worked around, returning at times to the place as his home; that he had no family living with him at the time of the rendition of the judgment or of the execution sale.

The estate of homestead, under the statute, is allowed, not to any person occupying premises of the designated value as a residence, but to “every householder, having a family,” so occupying premises.

Plaintiff once was a householder having a family, and became entitled to an estate of homestead in the premises. He afterwards ceased to be such a householder, and was not such at the time of the judgment and execution sale in this case.

The inquiry then is, whether plaintiff, having once acquired an estate of homestead by virtue of being a householder having a family, lost the estate on ceasing to be a householder having a family,--whether the being such a householder having a family, which is the essential condition of the creation of such an estate, is also the necessary condition of its continuance. The...