Potts v. Davenport

• Decision Date: 30 September 1875
• Citation: 1875 WL 8659,79 Ill. 455
• Parties: JAMES POTTS et al.v.THOMAS F. DAVENPORT et al.
• Court: Illinois Supreme Court

79 Ill. 455

1875 WL 8659 (Ill.)

JAMES POTTS et al.

v.THOMAS F. DAVENPORT et al.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Henry county; the Hon. GEORGE W. PLEASANTS, Judge, presiding.

Mr. GEO. W. SHAW, for the appellants.

Mr. H. BIGELOW, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was ejectment, in the Henry circuit court, by James Potts and William Evans against Thomas F., Elizabeth, and Charles Davenport, to recover possession of a certain tract of land described in the declaration, and occupied by the defendants.

The general issue was pleaded, and a trial by jury, who found for the defendants. A motion for a new trial was denied, and judgment rendered against the plaintiffs for costs, to reverse which they appeal.

It is not denied that, prior to and up to the 7th of April, 1871, and to the time of trial, and at all times since the 19th September, 1854, the legal title to the premises was in Elizabeth Davenport, by deed of conveyance of that date from one Elisha Atwater, she, at that time, and from June 22, 1848, being the wife of Thomas F. Davenport, and who had lived together as husband and wife, in this State, from and after said date. At the February term, 1871, of the Henry circuit court, one John Karns recovered a judgment against Thomas F. Davenport for a large sum of money, more than nine thousand dollars, on which a fi. fa. issued on the 13th of April of that year, which was returned nihil. On the 20th of June, 1872, an alias fi. fa. was issued, which was levied on the premises described in the declaration, and a sale thereof was made by the sheriff on the 4th of December following, to the judgment creditor, John Karns, for two thousand five hundred dollars, and a certificate of purchase duly issued to him.

Karns died in Pennsylvania, having made his last will and testament, by which he appointed the plaintiffs, Potts and Evans, his executors, and, on proof of the will, letters testamentary were issued to them, and to them the sheriff of Henry county, on the 18th of May, 1874, executed a deed, and this was the plaintiffs' title.

On the part of the defendant Thomas F. Davenport, it was proved he took possession, with his wife, of the premises in 1858, and resided thereon with his family, having three children living, the issue of said marriage, until the fall of 1870, having no other place which he called his home. Being much embarrassed financially, he, at this date, left the place, with his family, to better his fortunes by embarking in business in Chicago, renting the place for one year, but reserving two rooms, and expressing at the time his intention to return, if the climate, and other matters, did not suit him, his great object being to embark in some business from the proceeds of which he might be enabled to pay his debts. He left a portion of his household goods and valuables in the house, where they remained until his return, in November, 1873, when he, with his family, resumed possession, and have occupied the same as a homestead ever since. In Chicago he rented a house from month to month, and exercised no political privileges in that city or county.

On these, the principal facts, the question is, was the homestead abandoned at the time the lien accrued, which was on the 7th of April, 1871, and so abandoned as to preclude a return to it?

The question of abandonment of a homestead has been frequently discussed in this court, and decided. The cases are referred to by counsel. Appellants contend, as the premises were not actually occupied by the debtor on the 7th of April, 1871, when the lien attached, there was no homestead right.

The language of the statute is, the lot of ground and the buildings thereon occupied as a residence, and owned by the debtor, being a householder and having a family. Who should be deemed an “owner,” within the meaning of this statute, was discussed and decided in Deere v. Chapman, 25 Ill. 610, this court holding a tenant for life was such owner. Hence, the party was tenant by the curtesy, an estate subject to levy and sale on execution. The plaintiffs seek, by this action,...