20 Kan. 670 | Kan. | 1878
The opinion of the court was delivered by
After said judgment was rendered, Ashton, for the purpose of making said north parcel of land a part of his homestead, and for the purpose of defeating any levy of any execution which might be made upon said north parcel, assumed, at least nominally, greater control over the same, and over the houses thereon, than he had formerly done. In the written leases which were afterward executed he rented only certain rooms of the houses, and reserved to himself the rest of the houses, and the control of the grounds around them. Though in fact, and notwithstanding said written leases, he still allowed the tenants to occupy and use all of the two houses, and all the grounds around them, except the basement of one of the houses. But, as we have before stated, the question, so far as this case is concerned, is not governed by what transpired after said judgment was rendered, but it is governed by what transpired before and what existed at the time the judgment was rendered. The question is, not whether said north parcel has become a part of Ashton’s homestead since said judgment was rendered, but it is, whether it was a part of his homestead at the time when such judgment was rendered. At the time said judgment was rendered only one of said houses was actually rented, or occupied, and the other was vacant; but the vacant house had been occupied by a renter up to only a short time previously, and-was then kept by Ashton merely to be rented, and was shortly afterward rented. And the first time it was rented afterward, it was rented orally, and in the same manner that it had previously been rented. It was therefore, so far as any question in this case is concerned, substantially in the same condition as though it had been actually rented and occupied by a tenant at the time such judgment was rendered.
“A homestead, to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, [without regard to value,] occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale,” etc.
Mr. Thompson, in his valuable work on Homesteads and Exemptions, section 130, uses the following language: “This last case, (that of Gregg v. Bostwick, supra,) very clearly conducts us to the rule, that houses built for the purpose of being rented to tenants, thus yielding to the debtor a revenue separate from any use immediately connected with his dwelling, form no part of his homestead. This rule, at once so reasonable and easy of application, has been agreed upon by several courts, (here citing cases from California, Michigan, Wisconsin, Iowa, and New Hampshire.) It has been denied in Texas, (here citing 38 Texas, 425,) but, as we have seen, in pursuance of a view of the constitution of that state, which had been since substantially overruled, (here citing sec. 127 of his work, and 42 Texas, 105, 201;) and in Illinois, where a dwelling and a store-house occupied by a tenant stood upon one lot, the whole within the statutory limit of value, the store-house was held a part of the homestead — a view which must be deemed salutary, under a statute limiting the value of the homestead to $5,000,” (here citing 58 111. 425.) See also sec. 120 of Mr. Thompson’s work, and cases there cited.
In the case of Casselman v. Packard, supra, Judge Cole
In the case of Kurz v. Bursch, supra, Judge Wright uses the following language: “It was never intended that' other buildings, though on the same lot, buildings not appurtenant to the homestead as such, those not used and occupied by the owner in the prosecution of his own ordinary business, those rented and yielding a revenue to their owner — we say it was never intended that such should be exempt. If so, the law could be made to cloak the most stupendous frauds. For if one such building may be exempt, so may all that could be placed upon a half-acre, if in a town, or forty acres, if in the country, without limit as to value. And thus the statute, instead of securing to the family a home, where they may be sheltered, and live beyond the reach of financial misfortune and the demands of creditors, would give them property never contemplated by its letter or spirit.” 13 Iowa, 374, 375.
The judgment of the court below must be affirmed.