Connor v. Nichols

Mr. Justice Bkeese delivered the opinion of the Court. This was an action of ejectment to recover the possession of certain premises in the city of Chicago. On the trial this stipulation was entered into : “ It is hereby stipulated and agreed by the parties hereto, by their respective counsel, and admitted on behalf of said plaintiff, for the purposes of this suit, that the real estate in question in this suit, and the buildings thereon, were, in A. D. 1852, and from thence hitherto have been, and still are occupied as a residence, by the defendant, Thomas Oonuor, and owned by him, [unless affected by the trust deed in this case,] and that he, said defendant, is a householder, and has a family, consisting of a wife and children, now living, and that he and his said family are and have been, since A. D. 1852, occupying said premises as a householder. And it is further hereby stipulated and agreed, that the debt which the trust deed in this case, and under which the plaintiff claims title, was given to secure, was not incurred for the purchase or improvement of the premises described in the plaintiff’s declaration, or any part thereof.” This stipulation brings the case within the principle decided in Patterson v. Kreig, 29 Ill. 514, and re-affirmed in Pardee v. Lindley, and Hoskins v. Litchfield, Smith v. Miller, and Boyd v. Cudderback, decided at this term. It is unnecessary to reiterate the argument in those cases. They go to the full extent of holding, that setting up the homestead in an action of ejectment, defeats the claim to recover the possession. By ousting the wife, who has not released her right of homestead, the very object and purpose of the law would be defeated. The trust deed, without the wife’s express release, conferred no right of possession, and the judgment should have been for the defendant. The judgment is reversed, and the cause remanded. Judgment reversed.