Bartholomae & Roesing Brewing & Malting Co. v. Schroeder

67 Ill. App. 560, 1896 Ill. App. LEXIS 162

• Court: Appellate Court of Illinois
• Decided: January 7, 1897
• Status: Published

Opinions

Mr. Justice Waterman

delivered the opinion of the Court.

When witnesses testify, in the presence and hearing .of the master, on all .disputed questions of fact, where there is testimony so taken tending to establish the facts found, neither the chancellor, nor an Appellate Court on appeal, will review the master’s findings in regard to the weight to be given to such evidence taken before-him. The finding of the master in such case, as to matters referred to him, in regard to facts found to be established by the testimony, is as conclusive upon the parties as the verdict of a jury in a civil cause, and will be reviewed or set aside only for the saíne reasons that a verdict will be. 14 Am. & Eng. Ency. of Law, 940, notes 2 and 3; note 5, p. 1321, Vol. 2, Fifth Am. Ed., Daniell’s Ch. Pl. & Practice; Whitcomb v. Duell, 54 Ill. App. 650; Friedman v. Schoengen, 59 Ill. App. 376; Howard v. Scott, 50 Vt. 48; Williams v. Lindblom, 163 Ill. 346; Hudek v. Ennesser, 66 Ill. App. 609.

There was no evidence warranting a setting aside of the findings of the master as to the homestead of Mr. Remus.

The fact that there were two buildings upon a single lot, only one of the dwelling houses being actually occupied by Remus, did not restrict his homestead interest to the house in which he lived. Stevens v. Hollingsworth et al., 74 Ill. 202; Hubbell et al. v. Canady, 54 Ill. 425.

If the property were susceptible of division, and the house occupied by Eemus were, with the land upon which it was situate, of the value of more than one thousand dollars, a court of equity might, it would seem, under the authority of Stevens v. Hollingsworth, supra, separate and set off a homestead in such portion. Without such segregation, the homestead lien adheres to the entire premises.

The owner of a homestead may sell or mortgage such estate free from the lien of any judgment upon the premises; the grantee in such case takes the homestead estate which the grantor owned; such sale is not an abandonment, but a conveyance, of an estate in and to the premises. McDonald v. Crandall, 43 Ill. 231-236; Hartwell et al. v. McDonald, 69 Ill. 293-296; Lorrimer v. Marshall, 44 Ill. App. 645; Nichols et al. v. Spremont, 111 Ill. 631-633.

Mr. Eemus owned, in the premises in question, an estate of homestead; this he mortgaged; such mortgage had precedence as to the homestead estate over the judgment of appellee, because the judgment was not a lien upon such estate.

The decree of the Circuit Court awarding to appellees a precedence as to their judgment is reversed, and the cause remanded, with directions to enter a decree in accordance with the prayer of the complainants’ bill, and the report of the master.