Macavenny v. Ralph

Mr. Jostioe Adams delivered the opinion of the court. Counsel for defendants does not, in his opening argument, contend that there was an abandonment of the Taylor street homestead, and does not even discuss the question, except in his reply brief. Inasmuch, however, as counsel for complainant has discussed that question at length, and as it is the important question in the case, we will consider it. That complainant and her husband occupied lot 136, the Taylor street lot, as a homestead, is not disputed; and if there was not an abandonment of the homestead right in that lot, prior to the purchase by complainant of lots 61 and 62 with the proceeds of the sale to the railway company of the Taylor street lot, then complainant has a homestead in said lots. Hurd’s Rev. Stat., Ch. 52, Sec. 6. The evidence tends to prove that when the complainant and her husband removed from the Taylor street lot to the rooms on State street, their sole object was to be nearer to the husband’s place of work, and the fact that they permitted an aged couple to occupy the premises, rent free, for the mere purpose of having the place taken care of, tends to prove an intention on their part to retain the place as a homestead and to return to it. The occupancy by the Dunsings, their tenants by sufferance, was their occupancy. In White v. Plummer, 96 Ill. 391, the court say : “ Occupying the homestead by another is occupying it by the owner of the estate. It is simply another mode of enjoying the right secured by the statute.” It appears from the evidence that complainant, after her husband’s death, returned to the Taylor street property and occupied it until she was practically compelled, by condemnation proceedings, to sell it to the railway company. As before stated, if there was no abandonment of the Taylor street homestead, complainant has a homestead in lots 61 and 62, purchased with the proceeds of the sale of the Taylor street property. She was in possession of lots 61 and 62 when the executions in question were levied. On a jury trial, where homestead is involved, the question whether or not there was an abandonment of the homestead is for the jury to decide. Feldes v. Duncan, 30 Ill. App. 469. In the present case, the question was for the court, and we can not say that the finding of the court is manifestly against the evidence. Defendant’s counsel contends that a demurrer filed by three of the defendants should have been sustained; but the demurrer was waived by the joint answer of all the defendants. It is also objected that there was no affirmative evidence of the value of the lots. It appears that lot 62 was sold at public sale by the sheriff December 27, 1898, for $500, and that lot 62 was sold at likesale April 18, 1899, for $296.70, the total for the two lots being $798.70, and complainant testified that the two lots were worth seven or eight hundred dollars. Other contentions of the counsel we do not think it necessary to consider. The decree will be affirmed.