¶1dissenting:
¶2To the extent this opinion holds that the interest of a tenant in common will support a right of homestead in one of the co-tenants in the premises I cannot concur. On this question the authorities are conflicting. It has been held that an estate in common will support a right of homestead in one of the co-tenants in Vermont, Iowa, Texas, Kansas, New Hampshire and Arkansas. Whilst the statutes of those States are not the same, the general principle on which they sustain the right of homestead in a co-tenant is, that whilst such right cannot be enforced hostile to a co-tenant or one holding under him, yet third persons, nor a co-tenant, cannot question his right to acquire a homestead interest in the property, so long as his co-tenant is allowed to enjoy all his rights and privileges in such property, and no third person should be permitted to avail himself of the law of co-tenancy for his own gain. That an estate in common will not support a right of homestead in a co-tenant has been held in Massachusetts, California, Minnesota, Wisconsin, Louisiana and Michigan. The reasons given for the latter view are usually the impracticability of assigning such interest, and absence of statutory power in the court to do so.
¶3The first section of the Exemption act provides the householder is entitled to the farm or lot, etc., owned or possessed and occupied as a residence. Whatever interest is so owned or possessed, in order to constitute the homestead it must be of some specific portion capable of being set apart by metes and bounds, that it may be separated from that which is not exempt. The statute provides that the homestead may be set off in the method there directed, but it would be impossible to apply any of the methods declared by the statute to an estate in common. The tenant in common owns nothing in severalty, and no part could be set off to him which did not belong equally to his co-tenants. If the legislature intended to include tenants in common as being entitled to a homestead in lands so held, they would have provided a method of setting off the same. By the first section of the act the “homestead, and all right and title therein, shall be exempt from attachment, judgment, levy or execution sale for the payment of his debts, or other purposes, and from the laws of conveyance, descent and devise, except as hereinafter provided.” While thus fixing certain, qualities and rights attaching to homesteads, the statute is silent as to the homestead right attaching to lands held in common by two or more tenants. Being silent in this respect, those States which hold that an estate in common will support a right of homestead in one of the co-tenants must necessarily add to the statute and take from it. It cannot be free from the laws of conveyance, for if it cannot be partitioned the co-tenant may have it sold. That would be a violation of the spirit and words of the act, and would take away one of the rights and qualities of a homestead. If it should be sought to set off the co-tenant’s interest in the manner prescribed by the statute, the homestead so set off might be at once defeated by the co-tenant having partition made, or sold if it could not be divided. It renders necessary the addition of words to the statute which gives a homestead in the farm or lot owned or possessed and occupied as a residence. If a farm or lot is owned by the householder, no one else has an interest therein. If it is not, then the homestead cannot attach. The legislature has made no provision for a case of this character, and it is not our province to do so. If hardships arise, they may be remedied by legislation which shall meet all the exigencies of such cases. The best interpretation which can be given this statute is to limit it to cases of sole ownership or possession.
¶4In the case of Tomlin v. Hilyard, 43 Ill. 300, a similar question was before this court and the case was decided sustaining the right of homestead, because there had been a parol partition followed by a several possession. The reasoning in that case sustains what I have here written.