| Ill. | Oct 23, 1906
delivered the opinion of the court:
For a valuable and adequate consideration Coon conveyed the real estate, which was occupied by himself and wife as a homestead, to his wife by deed in 1893. By the provisions of section 4 of the Exemption act that deed, not having been subscribed and properly acknowledged by the wife, was inoperative as to the homestead estate unless possession was abandoned “or given pursuant to the conveyance.” After the conveyance was made, Coon, with his wife, continued to reside on the premises until May, 1902, when they took up their abode elsewhere, and thereafter this property was occupied by tenants, who rented from the wife, until October 29, 1903, when she sold the real estate to Castleberry and Howell, who immediately went into possession, taking a bond for a deed signed by both Coon and his wife, but which recites that the purchase was made from the wife. It is apparent that prior to the time when Velarie Coon’s vendees entered into the premises under their contract of purchase the possession of the property had been given to her by her husband, and that she had received such possession at or subsequent to the time when she and her husband ceased to occupy the realty as a place of residence. Whether that possession had been given “pursuant to the conveyance” is a question which must be here determined.
Appellee contends that the execution and delivery of the conveyance, and the delivery of possession in pursuance thereof, which are contemplated by the statute, must be one and the same transaction; that the delivery of possession must be so near in point of time to the execution and delivery of the conveyance as to show one continuous transaction, or that when delivery is long deferred such future delivery must have been contemplated and provided for by the parties to the conveyance at the time of the execution and delivery thereof.
Appellee relies principally upon certain expressions used by this court in the cases of Eldridge v. Pierce, 90 Ill. 474" date_filed="1878-09-15" court="Ill." case_name="Eldridge v. Pierce">90 Ill. 474, Willard v. Masterson, 160 id. 443, Gray v. Schofield, 175 id. 36, Davis v. McCullouch, 192 id. 277, and Strayer v. Dickerson, 205 id. 257. It is conceded by counsel for the trustee, however, that neither of these authorities is directly in point. The question here presented did not arise in either case, and for that reason the language relied upon should not control.
In our judgment, possession is “given pursuant to the conveyance” when it is given by reason or on account of the conveyance having been made, and not by reason or on account of some other circumstance. If the possession would not have been delivered except for the making of the conveyance, and no adequate reason appears for the possession being delivered except the making of the conveyance, then the possession is to be regarded as having been given pursuant to the conveyance, no matter what length of time or what circumstances intervene the execution of the deed and the change in the possession.
Velarie Coon entered into possession of the premises by virtue of the deed made to her by her husband, and it does not appear from the evidence in this record that the transfer of the possession from him to her was occasioned by anything which would lead to a change in the possession other than the execution of that deed. Whenever the possession was given pursuant to the conveyance the deed became operative as to the homestead estate, and having been so given at a time prior to the date when the petition in bankruptcy was filed, the title vested in Velarie Coon at such prior time, and did not pass to the trustee by virtue of the bankruptcy proceedings.
Section 4 of the Exemption act does not require that the possession should be given within any particular time after the execution of the deed or that the delivery of the possession should be so connected with the execution and delivery of the deed as to be regarded as a part of the same transaction, and there is no warrant for reading such provisions into this law.
Appellee was without title to any part of the premises described in the bill, and for this reason the decree of the circuit court will be reversed and the cause remanded to that court, with directions to dismiss the bill for want of equity.
Reversed and remanded, with directions.