Kenley v. Hudelson

Mr. Chief Justice Craig delivered the opinion of the Court:

This record presents two questions:

First — Whether the complainant, a married woman, can hold a homestead in premises purchased after she and her husband had separated, and while the husband was still living.

Second — If complainant was entitled to a homestead in the premises, had she lost the right of homestead by abandonment ?

The complainant, Margaret Kenley, a widow with several small children, about seventeen years ago married Henry Kenley, and resided with him one year and six months, when the parties, not being able to live together on friendly terms, separated, and have never resided together since the separation. The complainant had one child as the fruits of the second marriage, and when the separation was had, complainant agreed to keep the child, and relinquish all interest she had in her husband’s lands, and her husband gave her the sum of $600. It was understood and agreed that the separation should be final, and since it occurred the husband has contributed nothing to support the complainant, but she has supported herself and family by her own exertions, and lived separate and apart from him. The complainant purchased the premises in question in 1870, from money derived from her first husband’s estate, and after the purchase she moved on the property with her children, and resided thereon five or six years, when she rented out the land and moved to a small town near by, for the purpose of schooling her son.

The statute provides that every householder having a family shall be entitled to an estate of homestead, to the extent in value of $1000, in the property occupied as a residence. There is no dispute in regard to the fact that complainant was a householder with a family, nor is it claimed that the premises exceeded in value $1000; but the position of the defendants, as we understand it, is, “while the husband lives, and the relation of husband and wife continues, the husband not having deserted or abandoned his family, no claim to a homestead can exist in the wife. It is for him, while living, to claim, if he chooses. If he does not, she can not. It is her duty * * * to reside with him; his domicile, in law, is hers.” There is no doubt that where questions in regard to a divorce arise under our statute in reference to divorce, the domicile of the husband is the domicile of the wife, and the residence of the wife follows that of the husband, as held in Ashbaugh v. Ashbaugh, 17 Ill. 476 ; Davis v. Davis, 30 id. 180; Kennedy v. Kennedy, 87 id. 250.

But while it may properly be held, as was done in the case last cited, that the residence of the wife follows that of the husband, and when a husband acquires a new home it is the duty of his wife to go with him, and if she refuses without justification for two years, he will be entitled to a divorce, on the ground of desertion, yet it is manifest, on a" moment’s reflection, the doctrine announced can have no application whatever to a case where a wife may be asserting a homestead in premises occupied by her while she is residing separate and apart from her husband. It is true, complainant and her husband were not divorced, but at the same time they had separated finally, and she had for years supported herself and family by her own exertions.

In Love v. Moynehan, 16 Ill. 277 , it was held, that where the husband compels the wife to live separate from him, either by abandoning her, or by forcing her, by whatever means, to leave him, and such separation is not merely temporary and capricious, but permanent, and without expectation of again living together, and the wife is unprovided for by the husband, she may acquire property, control her person, and acquisitions, and contract, and sue and be sued in relation to them as a feme sole, during the continuance of such condition.

If the wife, after a permanent separation, has the right to control her acquisitions as a feme sole, she doubtless could, if she had acquired a homestead, hold it as against a creditor. It is perhaps true, where the husband and wife are residing together, and a homestead is claimed, the husband is ordinarily the proper person to assert the right, and in such a case a homestead- could not properly be set off to the wife; but where a final separation has taken place, no reason exists which would prevent a wife from claiming a homestead in premises acquired, as well as if she was sole and unmarried. Upon an examination of the statute, it will be found that the protection of the act is not extended to a husband, or to the head of a family., but, on the other hand, the law declares that every householder having a family shall be entitled to an estate of homestead. Here the complainant was a householder and the head of a family, and the statute will have to receive an unnatural and a forced construction to hold that she is not entitled to protection, when she falls directly within its terms. -The fact that complainant had a husband living, is not'sufficient to deprive her of the rights given by the statute to a householder having a family. Her husband had refused to provide her with a home and with support. True, the separation was agreed upon, but it is apparent they could not live together in peace, and that he failed to provide her with a home, as it was his duty to do. Under such circumstances, after the separation she had the right to acquire and hold property in the same manner that she would had she been divorced, and when she purchased the premises in question, and occupied the same as a homestead with her family, she has the same right to claim the protection of the statute as any other householder.

We now come to the question of abandonment. It appears, from the evidence, that complainant resided on the premises about six years, until February, 1876, when she rented to a tenant, and moved to Louisville, a town about three miles distant, for the purpose of educating an invalid child. At the time she moved, she expressed an intention to return. When the lease was made, she reserved the right to move back at the end of the year. She did not move all her personal property away. She left farming implements, a loom, spinning wheel, bedsteads, etc. From the testimony, it is apparent complainant did not abandon the homestead. She left the premises for a temporary purpose, intending to return and make the place her permanent home. Where a ’ person leaves a place which is occupied as a homestead, for a temporary purpose, intending to return, as was the case here, it can not be held that the homestead has been abancloned. Hayes v. Hayes, 74 Ill. 312 ; Potts v. Davenport, 79 id. 455 .

From what has been said, it follows that the judgment did not become a lien on the premises, and the sale was unauthorized, and did not pass any title.

The decree dismissing the bill will be reversed, and the cause remanded.

Deoree reversed.