Bartholomae & Roesing Brewing & Malting Co. v. Schroeder
Bartholomae & Roesing Brewing & Malting Co. v. Schroeder
Opinion of the Court
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.
Concurring Opinion
I concur with the majority of the court .that the decree should be reversed, but not on the broad ground that the opinion seems to take, that the chancellor is concluded by the findings of the master upon disputed facts.
Where, except, perhaps, in matters of account, or of a reference as to some particular fact in dispute, a chancellor is willing to assume the labor of examining into the correctness of the findings of facts reported by the master, I think he may do so, in accordance with the long established practice in that regard in this State; and if he arrives at a different result than the master did, I should prefer to give the greater weight to his conclusion, even though he did not see and hear the witnesses testify. I do not think that either under tho statute concerning masters, or the practice in chancery as it prevails in this State, the findings of facts by masters in causes referred to them by a general order to take proofs and report the same with their conclusions, should be given such controlling effect as we have held; and I should be glad to retract in that direction, rather than to advance under the lead of decisions in some other States, where, perhaps, different powers than here exist may have been conferred upon masters, either by statute or settled practice.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.