| Ill. | Apr 15, 1863
delivered the opinion of the Court:
The homestead exemption, created by the statute, if it attaches to any estate less than a fee, can not continue or be claimed after the estate has terminated. The persons who, by the provisions of the act are entitled to its benefits, must be the owners of the premises. Whatever may be said of the owner of a term — a life or contingent estate — a person having no interest in the property, or right to its enjoyment, is clearly not embraced in the provisions of the law. The term for which the husband of plaintiff in error held the property had expired before his death. This, then, precludes the possibility of his widow claiming any homestead exemption in the premises.
Bor can the homestead exemption attach to the owner of a tenement disconnected from the soil upon which it is erected. It is the owner of the land, and his widow and heirs, and not the owner of a building, who have the right to claim the benefits of the act. When this right was asserted by plaintiff in error, even if the" mortgage of the house by her husband, and the sale under it had been void, the lease of the ground upon which it stood had expired, and all of her rights were confined to the building alone, and to that no homestead rights could attach. These rights can alone attach to the building occupied as a home, through, or by virtue of the ownership of the land upon which it is situated.
It was objected that the plaint upon which this proceeding was based, was insufficient, in not alleging that plaintiff in error held over without leave of the owner. This may be a defect, but, if so, it should have been urged by way of a motion to quash. The objection came too late on the trial. In this case the evidence shows that the leasing was for a specific time, and that, plaintiff in error held over after the time had expired. In the absence of evidence to the contrary, the presumption is, that the holding over was wrongful. This warranted the jury in so finding.
It is likewise urged that the notice to quit was insufficient. That having entered under a lease for six months, and having held over a month after the expiration of- the term, the presumption is raised of a renewal of the lease, and that the notice should have required her to quit at the end of six months from the expiration of the first term. It is a complete answer to this objection, that plaintiff in error disclaimed to hold under her landlord. She asserted a right to hold independent of, and adversely to, him. She was therefore estopped from claiming a notice to terminate any lease from the defendant in error. During this whole controversy she has claimed to hold as the tenant of Bigelow’s heirs, and not as the tenant of defendant in error. If, after renting from him, she acquired rights adverse to his, she was bound to surrender the property to her landlord before she could be permitted to assert them. This she has not done; and even if the supposed lease from Bigelow’s heirs conferred any rights, she is not in a position to assert them. The judgment of the court below is affirmed.
Judgment affirmed.