¶1delivered the opinion of the Court:
¶2This was an action of ejectment, brought to the Jersey Circuit court by David T. Bonnell, against William Smith and Joshua Neely, to recover the possession of twenty-three acres of land, part of the southeast quarter of section twenty-three, in township eight, north range twelve, west, and particularly described in the declaration, by metes and bounds, courses and distances. By consent, the venue was changed to the city court of Alton, and a trial there had by the court, resulting in a verdict for the defendants.
¶3To reverse this judgment, the plaintiff brings the record here by writ of error.
¶4It appears by the record, that one Harville, who, it is agreed, was seized in fee of the land, on the twenty-ninth of December, 1862, sold and conveyed by deed of that date, to Philip English, the premises in controversy, together with the south half of southwest quarter of the same section. On the second of April, 1863, English executed his notes and a mortgage of these lands, his wife not joining therein, to one Dempsey, which was duly recorded. On the twenty-first of April, 1863, Bonnell recovered a judgment in the circuit court of Jersey county, against English, for fourteen hundred and seventeen dollars and fifty cents, on which an execution issued on the fifth dáy of May, 1863, on which the sheriff made about one hundred and forty dollars, by the sale of personal property, and so returned the writ. Dempsey, on the twenty-fifth of August, 1863, assigned English’s notes and mortgage to William Shephard, who, on the twenty-fifth of January, 1864, assigned the same to Joshua Neely, the defendant.
¶5Philip English married his wife, Laura) on the twenty-ninth day of January, 1861. On the twenty-fourth day of March, 1863, Laura filed her bill in the circuit court of Jersey county, against her husband, Philip English, for a divorce and for alimony, and such proceedings were had in the cause, that, at the October, term, 1863, it was decreed that the bands of matrimony should be dissolved, the custody of the' child committed to the mother, and the land above described, being incumbered by a mortgage to secure the payment of about twenty-five hundred dollars, was adjudged and decreed to the wife, Laura English, as alimony, and for the support of herself and infant child.
¶6It was further decreed, that in case the defendant did not make a deed for the land to complainant, in ten days, then the master in chancery should make such deed, conveying to the complainant all the defendant’s interest in the same. This deed was made by the master in chancery, and delivered to Laura English on the seventh day of December, 1863, and duly recorded.
¶7To the April term, 1864, Joshua Neely, to whom the mortgage had been assigned, brought his bill against Philip English, to have the mortgage foreclosed, and a decree of foreclosure w;as duly passed. To this bill, Bonnell being a judgment creditor of English, was made a defendant, neither he nor English making any defense. A sale was made of the premises at public auction, in pursuance of the decree, in separate parcels, and the same were stricken off to Neely, and a certificate thereof delivered to him.
¶8On the coming in of the master’s report, Philip English filed objections to its confirmation, for the reason that at the time the mortgage was executed, the premises were his homestead, and the same was not released, nor was it set off to him at the time of the sale. The court allowed the objection, and set the sale aside.
¶9At the October term, 1865, on suggestion to the court, appraisers were appointed by the master in chancery to appraise and set off the homestead in the premises, and the appraisers reported that they had set off to Philip English and Laura English, as their homestead, the twenty-three acre tract in the southeast quarter, on which was their dwelling house, which report the master duly made to the court, and the same was confirmed.
¶10While Shephard was the owner of the notes and mortgage executed by Philip English to Dempsey, he, on the seventh day of December, 1863, obtained a deed from Laura English for the expressed consideration of six hundred and fifty dollars, of the twenty-three acre tract in the southeast quarter, and of the south half of the southwest quarter, which was duly acknowledged and recorded. On the eighteenth of January, 1864, Shephard obtained a like deed from Philip English, of these lands; in both these deeds the requirements of the law were observed in relation to the release of a homestead right. On the twenty-fifth of January, 1864, Shephard, by deed of that date, conveyed the premises to Neely, the defendant.
¶11Bonnell, the plaintiff, claimed title to the premises by virtue of his judgment, execution and sale under it, and a sheriff’s deed executed to him. The execution under which the premises were sold, was issued February 12, 1864, and the sale took place May 5, 1864. The sheriff’s deed was dated August 26, 1865, to Bonnell, as the purchaser.
¶12These are substantially the facts in the case, and the question arising on them, is, had Philip English or Laura English a homestead right in this tract of twenty-three acres ?
¶13It appears, by the proof in the cause, that the mortgage from Philip English to Dempsey, was the first lien on this land, only subject to the homestead right, it having been executed some days prior to the rendition of the judgment against English, in favor of Bonnell.
¶14It further appears, that English and wife lived on these premises in January, 1863, in the old house of which Harville, their grantor, occupied a part; that English built another house, or shanty, as it is called, about thirty feet from the old house, and on the same tract, in which English lived some time with his family, until Harville moved out of the old house, when English moved into it, and had no other home but these premises. English and his wife did not live together very long after moving into the old house. English set out an orchard upon it in April, 1863.
¶15There can be no doubt whatever that this twenty-three acre tract was the homestead of English—he had no other home.
¶16The decree of the circuit court, dissolving the bands of matrimony between him and his wife, allotted this tract of land to • Laura for alimony. She, therefore, held it in a double right, as alimony, by a decree of the court, and as her homestead, by operation of the statute.
¶17But it is insisted, as she voluntarily left her homestead, to reside elsewhere, she forfeited the right.
¶18In this feature of the case it is not unlike that of Vanzant v. Vanzant, 23 Ill. 536. The wife in that case had left the premises, in consequence of ill treatment by her husband, but this court said, as she was the meritorious cause of the divorce, and the head of the family, the custody of the children having been committed to her, the benefit of the homestead would enure to her. So, in this case, the wife was the meritorious cause of the divorce, the custody of the child was committed to her, the benefit of the homestead should likewise enure to her. She may be said to have left it under a moral compulsion, at least, and by decreeing it to her as alimony, she wras thereby rehabilitated to it. Redfern v. Redfern, 38 ib. 509.
¶19At the time of this decree, Bonnell had no lien upon the land—that did not accrue until afterwards, and there was no incumbrance upon it except Dempsey’s mortgage, and to that she was not a party.
¶20But, it is said, Laura English is now dead, and therefore her homestead right is gone. But her child is living, and by the statute, the right is secured to him until he shall become twenty-one years of age, and that would prevent the plaintiff from recovering the possession—that, in contemplation of law,. is still in this infant.
¶21But as regards the decree of the court allotting these premises to her as alimony, by that decree she became their absolute owner, subject only to such liens as may have existed against them at the time of the decree. Of this nature was the Dempsey mortgage, and as the holders of that are also holders by deed from Laura and Philip English, of all their interest in the premises, another obstacle is created to a recovery by the plaintiff.
¶22But if this was not so—if the husband continued the owner of the homestead, it not having been released by the mortgage, and notwithstanding the decree of the court allotting it to his wife as alimony, it was not subject to sale under Bonnell’s execution. English himself would be entitled to hold it and to sell it, which he has done, even though there was a judgment lien upon it. This is settled by this court in the case of Green v. Marks et al. 25 Ill. 221.
¶23In whatever light we regard this case, it is apparent, the action of ejectment being a possessory action, the plaintiff had not, when he instituted his action, a right to the possession of these premises, and the city court, in so deciding, administered the law of the case, and its judgment must be affirmed.
¶24Judgment affirmed.