Kingman v. Higgins

• Decision Date: 30 September 1881
• Citation: Kingman v. Higgins, 100 Ill. 319, 1881 WL 10623 (Ill. 1881)
• Parties: CARRIE KINGMANv.JAMES G. HIGGINS et al.
• Court: Illinois Supreme Court

100 Ill. 319

1881 WL 10623 (Ill.)

CARRIE KINGMAN

v.JAMES G. HIGGINS et al.

Supreme Court of Illinois.

Filed at Springfield Sept. 30, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cumberland county; the Hon. WILLIAM C. JONES, Judge, presiding.

This was a bill in chancery, filed by John G. Higgins in his lifetime, against Carrie Kingman, to set aside a sale of his homestead under execution, in which Carrie Kingman claims title.

The evidence in this case shows, that in 1875 a judgment was rendered against John G. Higgins, father of appellees, in favor of the Johnson estate, and that the indebtedness was for goods and merchandise, and not for anything preferred by the statute as a lien upon the homestead rights of the said John G. Higgins, or his widow or heirs. The evidence further shows, that John G. Higgins owned and lived upon, as a homestead, with his family, the lands in question, long prior to that time (1875), commencing about the year 1870, and so continued until his death, and that he died leaving Jennie Higgins, his second wife, and step-mother of the appellees, and Lou L. Higgins, a child of Jennie Higgins, and half sister of the appellees, all residing on the land as a homestead.

It further appeared, that from the date of the judgment up to the filing of the bill, and since, the premises were not worth more than $1000, and that shortly after the death of John G. Higgins, his widow took Lou L. Higgins, her infant daughter, and permanently removed to her father's in a foreign county, abandoning the land and her step-children, the appellees. After the death of John G. Higgins, his children, William W. Higgins, Mary L. Higgins, John T. Higgins and Robert G. Higgins, by a former wife, became parties to the bill as complainants. Afterwards, Jennie Higgins, the widow, and Lou L. Higgins, her infant child, were made defendants. Shortly before the hearing, Jennie Higgins, the widow, conveyed all her interest in the premises to Carrie Kingman, releasing any claim she had to the homestead. It also appeared that Carrie Kingman derived her title or claim under the sale under the judgment through her deceased father, Dudley K. Johnson, she being his only heir.

Messrs. DECIUS & EVERHART, for the appellant:

It is claimed that the estate of homestead at the death of the husband passes to the widow, and during her lifetime, under the statute of 1873, she had a right to dispose of it as she saw fit, no difference what the hardship imposed upon the minors. Whatever estops her from claiming a homestead, estops the minor children. Buck v. Conlogue, 49 Ill. 391; Shepard v. Brewer et al. 65 Id. 385; Clubb et al. v. Wise, 64 Id. 160; Wright et al. v. Dunning, 46 Id. 271; McCormick et al. v. Kimmel, 4 Bradw. 121.

The entire evidence taken and reported by the master is not admissible, because it was taken before Lou L. Higgins, a minor, was a party to the suit, before a guardian ad litem was appointed for her, and without notice to her or her guardian ad litem of the time or place of taking the same, which alone renders the evidence inadmissible, and to admit it was error. Turner et al. v. Jenkins, 79 Ill. 228.

The evidence was not sufficient to show a homestead. It failed to show the premises were occupied as such at the date of the judgment, or that the judgment was not for improvements made on the land.

The decree was erroneous in finding a homestead only in favor of the complainants. It should also have found it in favor of their half sister, who was made a defendant.

The first and second errors assigned are in relation to the admission of evidence taken and reported by the master.

The appellants are both defending in this case, by reason of being heirs of deceased persons,--Carrie Kingman as heir of Dudley K. Johnson, deceased, through whom, as his only heir at law, she became vested with the title to the lands in controversy, and from the very nature of the case the original consideration is involved, for if given to secure the purchase money, or for improvements, etc., it would defeat a homestead right, and certainly appellees are not competent witnesses against her in their own behalf.

Mr. N. L. SCRANTON, for the appellees:

Lou L. Higgins, through the abandonment of the premises and her conveyance and release of the same afterwards to Carrie Kingman, by her mother, was not entitled to any standing in court, and this obviates the objection that evidence was used against her which was taken without notice to her.

The judgment, levy, sale and sheriff's deed are all since the death of Dudley K. Johnson, and therefore appellees were competent witnesses to these facts, as well as others transpiring after his death.

We admit that the father, as the head of the family, has the power to abandon the homestead for himself and family, and that the mother, when the head of a family, can also abandon the homestead and make such abandonment binding upon her children of the family, as decided by the authorities cited by counsel. We, however, assert the law to be, that as no laches of the father will conclude the rights of homestead, so no laches of the mother will bar the rights of the children. Hubbell et al. v. Canady, 58 Ill. 428.

A release by her of her interest in the estate does not conclude even her children. Miller v. Markle, 27 Ill. 405.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It is objected that the heirs of John G. Higgins, deceased, were not competent witnesses, and their evidence was improperly heard on the trial below. We are unable to appreciate the objection urged. It is true, they sue to have a cloud upon their homestead title removed, and they are heirs, and claim the homestead as heirs of their father; but all of the material portion of the evidence of those who testify relates to circumstances and facts which occurred after the death of their father. It is true, they state that their father occupied the premises as a homestead before and at the time of his death; but if this evidence were rejected, there is an abundance of other evidence to prove that fact beyond all cavil, and on a hearing on a bill in equity the court only considers such evidence as is competent. As to what they said in reference to the conversation between their father and the sheriff, that was wholly immaterial, as the homestead estate could not be released in that manner. The fourth section of the Exemption act provides that there shall be no release or waiver unless it be in writing, subscribed by the householder, etc., and acknowledged, or possession shall be abandoned or surrendered to a purchaser under a conveyance. There is not, nor can there be, the slightest pretence that Higgins, in his lifetime, did any of these acts, and without one of them there was no waiver of the homestead. This provision is so plain that it must have been overlooked, or such a defence would not have been urged in the court below.

It is next urged that the evidence fails to establish a homestead estate in Higgins in his lifetime, and consequently his children can claim none. The evidence abundantly shows that he occupied the premises; that he...