Taylor v. Bukowski
| Citation | 19 Ill.2d 586,169 N.E.2d 89 |
| Decision Date | 18 May 1960 |
| Docket Number | No. 35604,35604 |
| Parties | , 84 A.L.R.2d 698 Alta TAYLOR, Appellee, v. Walter BUKOWSKI et al. (Water Bukowski, Appellant.) |
| Court | Supreme Court of Illinois |
Rehearing Denied Setp. 26, 1960.
Allen & Allen, Danville, for appellant.
John R. Dean, Danville, for appellee.
This is an appeal from a modified decree of partition entered by the circuit court of Vermilion County, which failed to set off a homestead to Walter Bukowski, herein referred to as defendant, a co-tenant residing on the premises. Defendant appeals directly to this court, since a freehold is involved. Krusemark v. Stroh, 385 Ill. 64, 52 N.E.2d 156; Rossiter v. Soper, 384 Ill. 47, 50 N.E.2d 701.
Defendant Walter Bukowski and his wife Beulah acquired title to the premises involved in this proceeding as joint tenants and entered into possession and lived on the premises. Thereafter, Beulah obtained a divorce from defendant on the ground of cruelty and was granted custody of their minor child. She moved from the premises and defendant continued to reside there and ultimately remarried. The decree of divorce neither deprived defendant of his homestead, nor awarded it to Beulah. Thereafter, Beulah conveyed her interest in the premises to her mother, Alta Taylor, who filed complaint for partition wherein she alleged that defendant was in possession. Defendant was served with summons and defaulted for failure to appear. He did not consent, in writing, to a sale of his homestead exemption.
A decree of partition was entered on October 3, 1958, and the commissioners appointed therein reported that the property was not susceptible of division. Decree of sale was subsequently entered and pursuant thereto the property was sold to defendant on November 27, 1958, for $9,850. On December 1, 1958, defendant filed a motion praying that the decree of sale be modified by setting off to him $2,500 as his homestead, or that said sum be paid to him from the proceeds of the sale. Upon stipulation, the motion was treated as a bill of review under section 72 of the Civil Practice Act. Ill.Rev.Stat.1959, chap. 110, par. 72. Leave was given to defendant to answer the original complaint and plaintiff filed reply to the answer. After hearing, the trial court entered a decree modifying the original decree of partition, and found that defendant was a married man residing on the premises, but that he was barred of any right of homestead.
Defendant contends that he did not waive, nor did the prior divorce decree change, his homestead exemption in the premises. Plaintiff's theory is that defendant's right of homestead was barred by the divorce; and that the relief he seeks is unavailable under section 72 of the Civil Practice Act.
In resolving these contentions, the following statutory provisions must be given consideration:
Section 1 of the Illinois Homestead Act (Ill.Rev.Stat.1959, chap. 52, par. 1,) provides that every householder having a family shall be entitled to an estate of homestead of $2,500 in real property owned or rightly possessed by him, and occupied as a residence.
Section 2 of the act provides: '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.' Ill.Rev.Stat.1959, chap. 52, par. 2.
Section 5 provides: 'In case of a divorce, the court granting the divorce may dispose of the homestead estate according to the equities of the case.' Ill.Rev.Stat.1959, chap. 52, par. 5.
Section 20 of the Partition Act provides: Ill.Rev.Stat.1959, chap. 106, par. 63.
Under the provisions of section 16 of the Married Women's Act, 'Neither the husband nor wife can remove the other or their children from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another homestead suitable to the condition in life of the family; and if he abandons her, she is entitled to the custody of their minor children, unless a court of competent jurisdiction, upon application for that purpose, shall otherwise direct.' Ill.Rev.Stat.1959, chap. 68, par. 16.
And section 27 of the Conveyance Act provides: Ill.Rev.Stat.1959, chap. 30, par. 26.
From the facts in the case at bar, it appears that the defendant is a householder, having a family, and is in rightful possession of the premises as a tenant in common with the plaintiff, and that he occupies the premises as a residence. However, plaintiff maintains that the divorce for defendant's fault barred him of any homestead in the property and cites Rendleman v. Rendleman, 118 Ill. 257, 8 N.E. 773, as authority for such rule. In Rendleman, the wife acquired homestead exemption in the husband's real estate when he deserted her, without obtaining a divorce, but we held that when the husband later obtained a divorce for the adultery of the wife, the homestead exemption, of the deserted but undivorced wife, was terminated. Any dictum in Rendleman to the effect that divorce for the fault of the wife, ipso facto, terminated her homestead was vitiated in Claussen v. Claussen, 279 Ill. 99, 116 N.E. 693, and is now rejected by us.
In Claussen, the husband acquired legal title to certain premises in 1872 and he and his wife built a dwelling house thereon and resided there until 1898, when he deserted his wife and family. The wife and family continued to live on the premises and she retained a homestead therein. Thereafter, she obtained a divorce in 1911, but the decree made no disposition of the homestead. Upon appeal in a subsequent partition action, we held that the homestead exemption which continued in favor of the wife, who occupied the premises with her family after the desertion by her husband, was lost if not preserved by the decree for divorce, which purported to terminate all her interests in her husband's real estate. We announced that under such circumstances the relation of husband and wife was severed by the decree for divorce and the disposition of the homestead right was thereafter governed by the Homestead Act. See also: Krusemark v. Stroh, 385 Ill. 64, 52 N.E.2d 156; Barkman v. Barkman, 209 Ill. 269, 70 N.E. 652; Stahl v. Stahl, 114...
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... ... So, in Taylor v. Bukowski, 19 Ill.2d 586, 169 N.E.2d 89, it is said that the issues as to the equities between the husband and wife should be determined in the ... ...
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