Moore v. Dunning

29 Ill. 130

• Court: Illinois Supreme Court
• Decided: April 15, 1862
• Status: Published

Opinion

Caton, C. J.

This trust deed was not acknowledged as required by the statute, in order to release the homestead. Consequently, if it still continued to be the homestead of the family, it remained unaffected by that deed, even if the deed could take effect after that, which is a point we do not now decide. The only question, therefore, is, whether the desertion by the husband, leaving his family still occupying the homestead, was an abandonment of it as a homestead. To this there can be but one answer, which is in the negative. This place still continued the home and residence of the husband, as well as his family, at least, until it is proved that he had acquired a home and a settlement elsewhere, and this the law can never assume he has done. The presumption is, that he continues a wanderer, without a home, until he returns to his duty and his family.

The judgment must be reversed, and the cause remanded.

Judgment reversed.