95 Ill. 79 | Ill. | 1880
delivered the opinion of the Court:
This was an action of ejectment, brought by Andrew Yeates, to recover premises in possession of defendant. Originally, the action was brought against David Briggs, but on motion; Elizabeth Briggs was substituted as defendant, and the suit has since progressed against her.
Defendant was the wife'of Jacob Hertz, since deceased, and the premises were the homestead of her husband and herself during his lifetime. The title, plaintiff claims, was derived under two trust deeds executed by Jacob Hertz, defendant joining with him in the execution, but neither deed contained any release of the homestead. Still retaining possession of the premises, defendant claims a homestead therein, and sets up that right as a defence to this action. It is not denied that defendant had and still has a homestead in the premises, unless that right is barred by the act of her second marriage, or by the former judgment of the court between the parties. Neither position is maintainable. The homestead acts of 1851—7, in force when the trust deeds were made, saved the homestead “to the widow and family * * * * until the youngest child shall become twenty-one years of age and until the death of such widow.” The fact the widow has since married does not change her rights under the statute. Notwithstanding her marriage since the death of her former husband, she is still entitled to homestead, as she would be to dower, in the lands of her deceased husband. The statutory declaration is, that such homestead shall continue “ until the death of such widow,” and it will not be sooner barred except by release under the statute or by abandonment. Morrissey v. Stephenson, 86 Ill. 344.
As respects the finding in the former case, that defendant had the right of homestead in the premises “ until her youngest child by Jacob Hertz arrived at the age of twenty-one years,” it may be treated as no part of the judgment rendered in the cause. The duration of defendant’s right of homestead was not a matter in issue. That was fixed by statute. All that was involved in that litigation was the title of plaintiff to the premises and his right to immediate possession. Any finding by the court as to matters not involved nor litigated between the parties was a nullity, and of course binds no one.
The judgment will be affirmed.
Judgment affirmed.
