Wiggins v. Chance

• Citation: 54 Ill. 175,1870 WL 6282
• Parties: WILLIAM WIGGINSv.JOSEPH CHANCE.
• Decision Date: 30 June 1870
• Court: Supreme Court of Illinois

54 Ill. 175

1870 WL 6282 (Ill.)

WILLIAM WIGGINS

v.JOSEPH CHANCE.

Supreme Court of Illinois.

June Term, 1870.

APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

One of the questions arising in this case is, whether the owner of premises which he had occupied as a homestead, had abandoned the same in such manner as to lose his homestead right The testimony on that subject was as follows: One Nicholson, called by the party resisting the homestead claim, testified that the owner of the premises rented them to him in 1862, for three years, and in the fall of that year moved with his family to Centralia, a town in the same county, and returned, resuming his occupancy of the premises the next spring; that when he spoke of going to Centralia, he said he was going there to earn some money to pay his debts. The witness did not reside upon the place at all, and cultivated it only one year.

Joseph Chance, the owner of the premises, testified, that when he moved to Centralia he had no intention of abandoning his homestead, but went to make money to pay his debts, intending to return; that he did return to his homestead, and had occupied it since.

This temporary absence of the owner from his homestead, was subsequent to a sale of the premises under an execution against him, and the execution of a sheriff's deed to the purchaser, and it was in favor of such purchaser that it was claimed the homestead was abandoned.

The other facts in the case are set forth in the opinion of the court.

Mr. B. B. SMITH, for the appellant.

Mr. W. W. WILLARD and Mr. JAMES S. JACKSON, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action brought before a justice of the peace, for a trespass to land by cutting timber. The case was appealed to the circuit court. A jury having been waived, a trial was had by the court by consent, when the court rendered a judgment in favor of appellee, for five dollars and costs.

It appears that appellee entered the land in 1854, and has occupied it since that time, except a short period when he was absent laboring to earn money to pay his debts, but intending to return again, which he did. It appears that the two tracts lie adjoining, and a part of each is under fence, and was occupied as a homestead by appellee, and that the property was not worth more than $1000 at the time of the levy and sale. The evidence shows that one Isaac Garrison recovered a judgment against appellee, on the sixteenth day of July, 1858, before a justice of the peace, for the sum of $16.20, and costs of suit; that an execution was issued and returned “no property found,” when a transcript was filed in the circuit clerk's office of Marion county; that on the sixteenth day of June, 1859, an execution was issued on the transcript, directed to the sheriff to execute; that it was levied on the S. E. N. E1/4 of section 2, T. 1, N. R. 4 E. 3 P. M. The land was sold by the sheriff and Garrison became the purchaser, and no redemption having been made, he afterwards received a sheriff's deed for the same.

Appellant went upon the land and cut a number of small trees. While so engaged, appellee saw him and forbid his cutting the timber, but he claimed to have purchased the land of Garrison. It was proved that, when the deputy sheriff went to levy the execution, appellee sai...