Slattery v. Keefe
66 N.E. 365
Ill.
1903
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

Thе principal question in this case relates to the homestead of Mrs. Leonard in the premises. Appellant insists that she never lost her homestead, аnd that as it was not set off by the sheriff prior to the sale, the sale is void. Appellee insists that she lost her homestead, first, by becoming the sole occuрant ‍‌‌‌​​​‌​​​‌​​‌​‌‌​​​​​​​​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​​‌‌‌‍of the premises when her children had all left the homestead; secondly, by her deed to her daughter relinquishing her homestead; and thirdly, by abandonment by her own removal to California. In the view we take of the case it will not be necessary to consider the last question—that of abandonment.

First—The contention is, that after Mrs: Leonard acquired the premises as a homestead her son went away from home and her daughters married and left and all had other homes, and that she remained ‍‌‌‌​​​‌​​​‌​​‌​‌‌​​​​​​​​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​​‌‌‌‍the sole occupant of the premises, and was therefore no longer a “householder having a family,” as requirеd by the statute. This question was considered and settled in Kimbrel v. Willis, 97 Ill. 494, and we there held, that after the homestead estate has once been acquired under the statute, it continues in the original owner so long as he occupies the homestead premises, although he may have ‍‌‌‌​​​‌​​​‌​​‌​‌‌​​​​​​​​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​​‌‌‌‍ceased to be a householder having a family, and it will only become extinguished in some one of the modes mentioned in the statute, of which ceasing to be a householder having a family is not one.

Second—It is further contended, th at when Mrs. Leon- ' ard conveyed the premises, with release and waiver of homestead, to her dаughter, and went to live with such daughter, she thereby lost ‍‌‌‌​​​‌​​​‌​​‌​‌‌​​​​​​​​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​​‌‌‌‍her homestead exemption. Appellant, on the other hand, contends that the deed never was delivered and accepted, and therefore it never became operative, and the homestead was not lost.

The execution and recording of a deed by the grantor is only prima facie evidence of a delivery, and liable to be rebutted by showing", ‍‌‌‌​​​‌​​​‌​​‌​‌‌​​​​​​​​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​​‌‌‌‍among other things, that the conveyаnce was intended to confer no benefit upon the 'grantee. (Union Mutual Life Ins. Co. v. Campbell, 95 Ill. 267.) In Weber v. Christen, 121 Ill. 91, we laid down the following principles (p. 97): “Act and intention are the two elements or conditions essential to a delivery. * * * This intent, of course, is to be gathered from the conduct of the parties,-—particulаrly the grantor,—and all the surrounding circumstances. We think, in the case of an adult grantee, the acknowledging and recording of the deed without his knowledge оr consent does not, of itself, according ,to the weight of authority, amount to a delivery. (Citing cases.) Yet if, from all the circumstances in such a case, it appears the grantor, by these acts, intended to give effect and operation to the deed and to relinquish all power and control over it, we think it clear the law would give the deed effect accordingly,—in other words such acts would, in law, amount to a delivery. This would certainly be so in case of a voluntary settlement. * * * It is also true, as a general proposition, where nothing appears to show a contrary intention, that if the owner of an estate makes a conveyance of it and places the deed upon record Without the knowledge of the grantee, the title will nevertheless pass, if the latter, on being informed of the transaction, assents to it. And where the conveyance is a voluntary settlement or to one who is not sui juris, a formal assent need not be shown, as it will, if nothing further appear, be presumed.” Mrs. Leonard, in her deposition, taken a few weeks before her death, testified: “I was going away on a long journey. My health was poor, and if anything happened to me I wanted Margaret Powers to have my place. That is the reason I deeded it to her. I wanted her to have it if anything should happen to me in my journey. It was not a sale. I did not know what would happen tо me, and I wanted her to have it. I do not know what became of the deed that I gave to Margaret Powers. I do not know that that deed was ever sent оut there. I do not remember. There was nothing said between her and me that I was going to make a deed to her. Mr. Slattery put the deed on record. I gavе him the money to put it on record. I went away the next day.” In regard to the re-conveyance to her Mrs. Leonard testified: “I wanted my home back agаin and she wanted I should have it. When I went out there I told her I wanted it back again, and she said I should have it. She did not want it. She wanted me to have my house back аgain. My daug'hter was in poor health, and she lived for seventeen months in poor health, with consumption.”

The intention of the grantor, according to her оwn testimony, was, that the daughter should have this property; that she did not know what might happen to her, and she wanted the daughter to have the property. Thе grantor evidently considered .that she had fully given it to her daughter when she said that she told her that she wanted it back again. It was a voluntary deed, though for an еxpressed consideration of $1000. It was beneficial to the grantee. The re-conveyance was not made until after the grantor had been living for ninе months in the home of the grantee and it had become evident that the mother would outlive the daughter. All the circumstances point to a valid delivery and acceptance of the deed. Both parties treated it as a valid conveyance, and it was determined to make a re-conveyance because the daughter was not expected to recover. Nor is the testimony of Mrs. Leonard’s tenant at variance therewith. His lease began in May. The deed was made in October. He testified that he rented the property from Mrs. Leonard, but paid his rent to the First National Bank, except enough of it to cover repairs, which was paid to John Slattery. He had been ordered to do so by Mrs. Leonard. He paid the rent to the bank tо apply on the mortgage that was held by the bank. He never received any orders to the contrary, and when Mrs. Leonard returned to Galesburg the property had been re-conveyed to her. The testimony in regard to her intention of making her home permanently in California is conflicting. The deed having bеen delivered and accepted, Mrs. Leonard thereby extinguished her homestead estate.

Third—It is claimed for appellant that as the statute exempts the proceeds of the sale bf the homestead for the period of one year from execution or other process, and if re-invested in a homestead the same shall be entitled to the same éxemption as the original homestead, and as the premises were re-conveyed to Mrs. Leonard within a year, therefore she held the same as a homestead without any judgments becoming liens thereon. The conveyance to her daughter was purely voluntary and she received no money for the same,—“it was not a sale.” There were therefore no proceeds tо be exempt from execution and none to re-invest in a homestead.

Fourth—When Mrs. Leonard became re-invested with the title to the premises she wаs living in California with her daughter. She was not then, nor at any time since, a “householder having a family,” and consequently could not acquire a homestead еstate in the premises, and the judgments immediately became liens on the property. Nor was it shown that she occupied the premises as her home after they were re-conveyed to her.

No error appearing, the decree will be affirmed.

Decree affirmed.