Cipperly v. Rhodes

53 Ill. 346

• Court: Illinois Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

Mr. Chief Justice Breese

delivered the opinion of the Court:

We are satisfied, on mature consideration, that this decree should be affirmed. Ho"question is made that the homestead right would have existed in Rhodes, had he taken the deed to the lot in his own name, instead of taking it in the name of his wife. He paid the purchase money wholly out qf his own funds, and at a time when he had a right to obtain a homestead which would not be liable for his debts then existing, or to be subsequently contracted; and the sole question is, whether taking the deed to his wife placed the property beyond the protection of the homestead law.

This is an inquiry, into which the animus enters largely.

Did he purchase it as and for a homestead, and has it been so used and held ? If such was his intention, then, taking the deed to his wife should not, we think, cut off that right. If the design was simply to acquire property which he could hold in fraud of his creditors, then the law would strip it' of its covering, and subject it to the payment of his debts; but it must be remembered that it was not a fraud on creditors to buy a homestead which would be beyond their reach. Such was the manifest purpose of the act.

There is a plain distinction between this case and that of Cassell v. Williams, 12 Ill. 387, cited by plaintiffs in error. There the debtor had fraudulently sold a horse to keep it from the reach of his creditors, which, if he had not sold, would have been exempt from execution, and this court held, that as the sale was valid as between the vendor and vendee, and only void as to creditors, the vendor could not subsequently claim it as exempt from execution, and recover three times its value against the officer, as for selling property exempt by law.

In Getzler v. Saroni, 18 ib. 518, the debtor fraudulently conveyed the property to a third person, in order to place it beyond the reach of his creditors, and then absconded, when the wife interposed a claim to the property as a homestead. Without deciding whether the husband could have successfully interposed such a claim, this court held that the wife could not while the husband was living. While he is living, and the head of the family, in contemplation of law, the right of exemption, conferred by the statute, vests in him alone, and in his name alone can it be set up. To the same effect is the case of Redfern v. Redfern, 38 ib. 509.

We can not see the applicability of either of these cases to the one now before us. Here the claim is interposed by the husband, in whom the statute vests it.

We do not perceive any ground for contending that Rhodes had abandoned the place as a homestead. He had been absent a few months in an adjoining State, with bis family, and soon returned. This, clearly, was but a temporary absence, for a temporary purpose, the animus revertendi always remaining. He did not, thereby, lose his citizenship or right to vote. His domicil all the time was Decatur. The decree must be affirmed.

Decree affirmed.