| Ill. | Apr 15, 1865
delivered the opinion of the court:
This record presents a question of fact for determination. It is, whether plaintiff in error abandoned his homestead, so that a judgment previously recovered, and under which a sale had been made, and a transcript of a judgment before a justice of the peace, became valid liens upon the homestead. Up to the time plaintiff in error moved to Minnesota, the premises were undoubtedly protected from sale under' execution, by the operation of the homestead law. But he left his home, and removed with his family to Minnesota, and with them, resided there for two years. He stated before leaving the State, that if he liked the country, and could do well in his business, he would remain, but if not, he would return. And after he came back to his former residence, he stated that when he left, he expected to remain in Minnesota, but found it to his interest to return tooEeithsburg. From these statements, it is manifest that he left with the design of remaining, and of abandoning his former home. He says he expected to remain in Minnesota.
Whilst this court has held that an actual residence is not, under all circumstances, essential, yet, as a general rule, it is requisite, to protect the homestead from sale on execution. To carry out the object of that Statute, it may become necessary, when the husband is dead, and especially so, when both parents have died, and the children, entitled to the benefit of the law, are of tender years, that a residence by a tenant may be substituted for an actual occupancy by the widow or the children. But it is only in such cases, and under peculiar circumstances, that the actual residence of of the person claiming the benefit of the act can be dispensed with.
This was the rule announced in substance in Walters v. The People, 21 Ill., 178" date_filed="1859-01-15" court="Ill." case_name="Walters v. People">21 Ill., 178, and Kitchell v. Burgwin, 21 Ill., 40" date_filed="1858-11-15" court="Ill." case_name="Kitchell v. Burgwin">21 Ill., 40. It was, however, said that we could lay down no rule to govern such cases, but each case must depend upon its own peculiar circumstances, so th^t among, them no evidence shall be found of an abandonment of the husband and family.
In this case, we think that a removal by himself and family, for the period of two years, to another State, and ceasing to occupy the premises, was evidence of an abandonment by the owner of his right to claim the homestead. This, we think, is true, without reference to what he said before or after his return. That could not change the question, of whether he had ceased to reside upon the place. His intention may have been a material question, as to whether he had ceased to be a resident of the State, but could not operate upon the question of whether he had ceased to occupy his homestead. If he might remove his family and effects to another State, and remain there with them for two years, and still claim his former residence as exempt from sale under the homestead law, we are at a loss to conceive how long an abandonment it would require to subject it to the payment of his debts. To permit such an abandonment, without rendering the property liable to forced sale, would be to enable debtors to perpetrate frauds upon their creditors that could not have been designed by the general assembly when the act was adopted.
The judgment of the court below must be affirmed.
Judgment affirmed.^
having tried the cause in the court below, took no part in this decision.