White v. Clark

Mr. Chief Justice Walker delivered the opinion of the Court: The evidence shows, that the premises in controversy were conveyed to Thomas White, the husband of plaintiff in error, in the year 1855, and that he conveyed the same to Stephen A. White in October, 1857. But plaintiff in error did not join in the deed or in any manner relinquish her right to claim the benefit of the homestead act. She continued to occupy the premises until the commencement of the suit, and until the trial in the court below. It further appears, that E. B. Worsley, Thomas White, and Stephen A. White, confessed a judgment at the October term, 1857, of the McDonough Circuit Court, in favor of defendants in error; that they sued out execution; had the property levied upon and sold, when they became the purchasers; and it not having been redeemed, they obtained a sheriff’s deed, upon which this recovery was had in the Circuit Court. It also appears, that the premises were enclosed and occupied by Thomas White and plaintiff in error as their homestead at and previous to the time of the conveyance to Stephen A. White. That Thomas White abandoned plaintiff in error in August, 1860, and continued absent until in December, 1861, when he returned and lived with her for a short time, and again abandoned her. That she has never abandoned the place, but has continued to reside thereon. ■ That the premises do not exceed one thousand dollars in value. Under the amendatory act of 1857, it is necessary that the wife should join with the husband to relinquish the right to claim the homestead. Until she joins in the release her homestead rights are not affected. It appears from the evidence that this was a homestead occupied by husband and wife when he conveyed to Stephen A. White, and continued to be for nearly three years afterward, before he abandoned' plaintiff in error, she still continuing to occupy it as such. Eotwithstanding Thomas White has abandoned plaintiff in error, it does not appear that he has acquired another home, or that he does not regard this as his residence, and it is occupied and claimed by the wife as the homestead of the family. It was said in the case of Moore v. Dunning, 29 Ill. 130, that the desertion of the family by the husband, still leaving his family occupying the homestead, is not an abandonment of the homestead. So in this case, White left his wife in possession of the homestead, and it remained such, unaffected by his desertion. It being a homestead and having been sold under execution, we are now asked to presume that the debt for which it was sold accrued before the passage of the act, or that it was created for the purchase or improvement of the premises. In the case of Stevenson v. Marony, 29 Ill. 532, it was held, that when the defendant was in possession of premises as a homestead, and was within the provisions of the statute in other respects, it devolved upon the plaintiff to show that his debt was created for the purchase or the improvement of the homestead, before he could subject it to sale in satisfaction of his judgment. And it was for the reason that the averment is an affirmative fact, more easily proved than the negative of the proposition. The same reason applies to the averment that the debt accrued before the adoption of the law of 1851. And this fact, like the others, should be proved by the plaintiff, and failing to do so, it will be presumed not to be true. When the defendant shows that he was the head of a family, is a householder, and owned and occupied the lot of ground as a residence, when the judgment was rendered or the deed or mortgage was given, and the right to claim the benefit of the act has not been released, he has brought himself prima fade within the provisions of the law. And to overcome his prima facie case the plaintiff must show that it falls within some of the exceptions which renders it liable. In this case defendants in error failed to make any such proof, and have for this reason failed to make out their case. The court below therefore erred in rendering judgment in favor of defendants in error, and it must be reversed and the cause remanded. Judgment reversed.