delivered the opinion of the Court.
The third assignment of error relates to the action of the court in refusing propositions of law. The principle contained in the first and third propositions was substantially and sufficiently announced in the fourth, which was held. The second and fifth were not propositions of law purely, but were rather in the nature of propositions of fact and were properly refused for that reason.
The first, second and fourth assignments of error may be considered together, and they present the single question, whether, upon the agreed facts, the plaintiff was entitled to recover.
The finding of the court is to be regarded with the same favor as the verdict of a jury, and the same presumptions will be indulged in order to support it. While it is true that assumpsit for use and occupation can not be maintained without a contract, express or implied, showing the relation of landlord and tenant to exist, yet a contract to pay rent may be inferred from the mere occupancy of premises unless the character of the occupancy is such as to negative the idea of tenancy. Wood on Landlord & Tenant, 8; Oakes v. Oakes, 16 Ill. 106. It may, therefore, be assumed that under the proofs the court was warranted in holding that appellant was the tenant of either the appellee or of her husband, and so the question is, which of these was by law entitled to claim the rent.
It may further be assumed without difficulty that there was sufficient evidence to justify the conclusion that the husband had deserted the family; that the building in which the store room was contained was the family homestead, and that it was of the value of less than one thousand dollars. The inquiry is then narrowed down to the effect of such desertion.
Did it devolve upon the wife the right to enjoy the rents ? It has been settled by repeated decisions that the amendment to the homestead law, passed in 1873, produced a radical change in the character of the homestead right and enlarged it to an estate. It is no longer a mere exemption. Browning v. Harris, 99 Ill. 456. By Sec. 2 of the act it is provided that “ such exemption shall continue after the death of the householder for the benefit of the husband or wife surviving, as long as he or she continues to occupy such homestead, and of the children until the youngest child becomes twenty-one years of age, and in case the husband or wife shall desert his or her family, the exemption shall continue in favor of the one occupying the premises as a resident.”
Although in this section the word “ exemption ” is used to designate the right referred to, yet the Supreme Court have treated the section, so far as the character of the right is concerned, as intending and contemplating the same thing as the first section, which enlarges the right to an estate. There would have been a gross want of harmony in the law with a construction which gave an estate to the husband while living, and the head of the family, but devolved a mere exemption upon the wife in case of his death or desertion. Moreover, such a construction would have defeated 'one of the expressed objects of the change, that is to protect the surviving husband or wife against partition proceedings.
In Browning v. Harris, supra, it was said that when the head of a family having an estate in fee in the homestead premises dies, and the right of homestead is devolved upon the surviving wife by operation of law, a life estate is carved out of the fee for the purpose of such estate of homestead, and the heirs take a reversion in fee only expectant upon the termination of such life estate. In Rendleman v. Rendleman, 118 Ill. 257, it appeared that the husband had deserted the wife, and in discussing the rights of the wife in the homestead premises, the court remarked: “ The wife having thus become the head of the family, the law at once clothed her with a right of hom'estead in the same premises. This right of homestead is expressly declared by the legislature to be an estate in the lot of ground and building to which the right attaches. Like all other estates it must be supported by a title. This title may be in fee, for life, "or even for years, in the case of an extended term. In all cases the title must be either in the owner of the homestead right or in one who sustains or has sustained some special relation to such owner, or in the assignee of one sustaining or having sustained such special relation to the owner. The relations here alluded .to are, of course, those of husband and wife and parent and child. "With respect to the former it is unimportant whether the title to the homestead premises is in the husband or in the wife. "Whether in the one or the other, the holder of the title can not deprive the other of the enjoyment of the hemestcad premises. Thus it is expressly provided by the second section of the act that in case the husband or wife shall desert his or her family, the exemption shall continue in favor of the one occupying the premises as a residence.”
From the view thus taken, it must follow as a logical consequence that when the husband, being the owner of the fee of the homestead premises, deserts his wife, the right which the law devolves upon the wife is an exclusive estate which she may enjoy without interference from her delinquent husband.
If a tenant should pay the husband for rent accruing during the period of her exclusive right of enjoyment it would be no bar to her demand. In this case it is conceded by counsel for appellant that while the latter had no express contract of leasing with anybody, yet he was, in fact, a tenant and not a trespasser; that is, that the law would imply a liability to pay rent to the party legally entitled to claim it.
The only pretense of payment here was that after the appellee demanded the rent the appellant credited the amount upon the indebtedness of the husband, and that without consulting him.
The case of Dudding v. Hill, 15 Ill. 61, relied on by appellant, is not in point because the facts are unlike those in the case at bar. Dudding had bought the property under execution against the husband, 'who died in possession. Afterward the wife left the premises, intending to return, but Dudding took possession, claiming the right as owner to do so, and then Mrs. Hill brought assumpsit for use and occupation. The court said: “ Dudding went into possession under a claim of title and not as the tenant of Mrs. Hill. His possession was not subservient to her title but purely of an adverse character.” It may be remarked also, that the case arose before the passage of our original homestead law.
The present case is more like that of Oakes v. Oakes, supra. There the proof showed merely that the deceased went into possession of the plaintiff’s land and occupied it for several years, and that the rental value was $300 per annum. The Supreme Court said: “ There is no evidence
of an express contract for rent, nor is there any evidence that the defendant’s intestate was a trespasser or intruder upon the land, or that he in any way held it against the will of the owner, nor is it shown that there was any agreement or understanding that the tenant was to enjoy the land without rent. Under such circumstances the law will imply an agreement to pay a reasonable rent for the premises.”
And the court reversed the judgment, which was for defendant, because the trial court had misled the jury by an instruction to the effect that the plaintiff must prove a contract between the deceased and the plaintiff, creating the relation of landlord and tenant as for the payment of rent, it being thought that thereby the jury were led to suppose an express contract was necessary.
It is argued, however, in behalf of appellant, that whatever rights the appellee may have, the remedy is not at law, citing Mix v. King, 55 Ill. 434.
In that case the wife had been abandoned by the husband, leaving her in possession of the homestead, upon which there was a mortgage, in which the homestead was not released. Ejectment was brought by the purchaser at the mortgage sale, against the husband, and a judgment was obtained upon which a writ of possession was issued, under which the wife was put out of possession. She afterward filed her bill for an account of the rents and it was sustained. The court said she had no adequate remedy at law; that the judgment in ejectment against the husband was effective against her, and that she had no remedy by ejectment or by forcible detainer. This case, while clearly announcing the right to claim the rents, seems to support the view that remedy is not at law, but in equity, for an accounting.
It arose prior to the enactment of the amendment of 1873, by which the homestead right was raised to the dignity of an estate, which, as was said in Browning v. Harris, supra, is “ carved out of the fee,” and which, as we have seen, is the subject of the exclusive enjoyment of the party entitled to it, and is otherwise in its facts unlike the present case. We think it is not in point.
We see no reason why the appellee might not maintain trespass, or forcible detainer, against an intruder upon her possession, nor why she may not sue in assumpsit for the rent. The judgment will be affirmed.