Rendleman v. Rendleman

• Decision Date: 07 October 1886
• Parties: RENDLEMAN v. RENDLEMAN.
• Court: Illinois Supreme Court

118 Ill. 257

8 N.E. 773

RENDLEMAN

v.RENDLEMAN.

Supreme Court of Illinois.

October 7, 1886.

Error to Jackson.R. J. Young and R. J. Stephens, for plaintiff in error.

W. W. Barr and W. J. Allen, for defendant in error.

MULKEY, J.

This was an action of ejectment brought by Jerome T. Rendleman in the circuit court of Jackson county against Elizabeth Rendleman for the recovery of the S. 1/2 S. E. 1/4 and the N. E. 1/4 S. E. 1/4 of section 35, township 10 S., range 1 W., in said county, the plaintiff claiming the same in fee. The defendant set up a right of homestead and of dower in the premises, and this was the only defense relied on. The cause was tried upon the merits, resulting in a judgment for the plaintiff, to reverse which this appeal is brought.

As appears from plaintiff's affidavit in the record, both parties claim through George Rendleman, formerly the husband of the defendant. On the trial the plaintiff put in evidence, without objection, a deed for the premises from George Rendleman and wife, acknowledged on the tenth day of March, 1882, and recorded on the thirty-first of July of the same year, the deed itself being without date. The defendant was then examined as a witness in her own behalf, and from her testimony it appears that in 1854 she and the said George Rendleman, her then husband, moved upon and occupied the premises in controversy as homestead, until 1869, when they temporarily moved to Makanda, a distance of two and one-half miles, where they lived from October of that year until the month of April following, when he left for Kansas, and she and their two minor children returned to the homestead premises, which she has ever since occupied, either by herself or by her tenants. To meet the case thus made by the defendant's testimony the plaintiff introduced in evidence an authenticated copy of the record of a suit for a divorce brought by George Rendleman against the said Elizabeth to the September term, 1877, of the district court of McPherson county, Kansas, wherein the latter was charged with adultery. The transcript of the record in question shows that both parties appeared in person and by attorney, and that the court made, in said cause, the following special findings:

‘(1) That defendant had sexual intercourse with Norman J. Schultz on or about the twentieth day of May, 1871, at the city of Centralia, in _____ county, Illinois.

‘(2) That plaintiff and defendant were not living together at time of commission of said act of adultery with Schultz by defendant; but plaintiff had abandoned her, and separated from her, in the month of April, 1870, by leaving her and their children in the state of Illinois, and going to the state of Kansas, on the promise of returning, and for the planned purpose of traveling for his health; that just before starting for Kansas he sold and deeded, without knowledge of defendant, to one of his brothers residing in Illinois, the only tract of real estate owned by him in said state. He received $2,000 from such sale, and with it, on arriving in Kansas, located himself here, and never returned to defendant, or sent for her, or supplied her with any means of support, save that he lived with and supported her for about three weeks, in 1876, on her visiting him in Kansas, and he left her in custody of $300 to $400 worth of personal property; and the defendant, after litigation, has had possession of, and the use, for a portion of the time, of the said real estate sold by plaintiff;that defendant is now residing with her father; that plaintiff did not so leave defendant wholly of his own fault, but partly for and on account of the fault of the defendant in her mistreatment of him and the children, and making his home unhappy by reason of an ungovernable DISPOSITION, AND HAD AT TIMES (FOR HOw long does not appear) refused to cohabit with him as a wife.

‘(3) That the reputation of defendant for chastity and virtue in the community in which she has lived in Illinois is, and has been, for four years last past, bad, and that she probably committed an act of adultery with John Waters, in Carbondale, state of Illinois, in the year 1875, about the month of April.

‘(4) That defendant has no property at this time; that plaintiff has, in the state of Kansas, an equitable interest in lands and personal property of the value of $2,000 or more; that plaintiff has secured or supplied defendant, on application to the court for counsel fees in this cause, $50.

‘(5) That the marriage of the parties is admitted by the pleadings, and that cohabitation followed such marriage up to about the time of plaintiff's leaving defendant and coming to Kansas.

‘(6) That two children are now living as the fruits of such marriage,-a boy of about the age of 21 years, and a girl of about the age of 13 years,-both living with and in the care and custody of defendant, in the state of Illinois.’

The court then found as conclusions of law: ‘(1) That the defendant was guilty of adultery with Norman L. Schultz as charged in plaintiff's petition; (2) that $650 was a reasonable amount to allow as alimony to the defendant under the circumstances.’ The final decree then dissolves the marriage between the parties on the ground of the wife's adultery, awards her the sum of $575 ‘in full of all claims, rights of dower, or otherwise in the property, whether personal or real, of the husband, now or hereafter to be acquired, and the costs of suit.’

The plaintiff in this suit also introduced in evidence a quitclaim deed for the premises from Martin Rendleman and wife to the plaintiff, dated February 28, 1882, and filed for record July 31, 1882. This was all the evidence in the case. Whereupon the jury found the issue for the plaintiff, upon which the court rendered final judgment, as has already appeared.

We perceive no difficulty in this case. The fourteenth section of the dower act we regard as conclusively settling the rights of the parties. It is as follows: ‘If any husband or wife is divorced for the fault or misconduct of...