Bebb v. Crowe, 39 Kan. 342

Bebb v. Crowe

39 Kan. 342 | Kan. | 1888

Opinion by

Holt, C.:

The sole question we shall consider is, whether under the findings brought here this lot was occupied by the plaintiffs as their homestead. A homestead is limited in its extent in this state, and must be occupied as a residence of the family, but there is no limitation on its value; hence a part of the authorities cited by counsel have no application in this case. In passing to the discussion of matters that properly arise in this decision, we will say that it is evident that the claim of plaintiffs to this property as their homestead was not the means of withholding any great amount of *345property from their creditors. It certainly cannot be an unnecessarily commodious and expensive residence, when it is the home of a family of seven, and being situated upon the main street of a young and thriving city is worth, with the buildings thereon, only $1,900. We believe we do not violate the spirit of the homestead law, and aid dishonest debtors, when we declare the property exempt if it comes within the letter of the law.

From the findings we learn that this had been the home of the plaintiffs long before this debt was contracted which was sought to be satisfied by the sale of the property. The second story of the main building was entirely occupied by the family, and the first story partially; and they also used the cellar or basement of the building jointly with the tenant, for a store-room. This occupation would usually be sufficient to make it the residence of the family, and bring it within the provisions of the homestead law as interpreted in this state. (Rush v. Gordon, 38 Kas. 535; Hogan v. Manners, 23 id. 551; In re Tertelling, 2 Dill. 339.)

Rut defendant claims that there is this distinction in this case from those referred to, because a part of the lower story and basement was not occupied by the plaintiffs themselves, but was leased, and the tenants were carrying on therein a mercantile business; and also that there was a room attached to the main building which was a part of the time leased and a part of the time occupied by plaintiffs as a butcher shop, and which had no door opening into the main store-room. The defendant levied upon the lot and appurtenances, and now wishes to sell thereunder, the shed or addition, and the lower story only, leaving the upper one and the basement as the homestead of the family. There is a question whether that part of the property could be sold under the levy and .execution, even if it should be held that it was not exempt; but we shall examine only the question whether the occupancy of a part of the building would destroy the homestead right of plaintiffs in that part of the building so used. It appears that the lower or first story was not exclusively occupied by the *346tenant. The owner reserved the right to go to and from the stairway leading to the second story; without that right the part of the building occupied by the family would have been less convenient; their most easy way of ingress and egress, being by way of the stairs, reached by going through the store room, would have been cut off. But leaving out this right to go through this room, which seemed almost indispensable in this instance, why should not an owner do as he wishes with his own building, when it is in reality his own residence, the abode, the dwelling-house, the home of his family? Of course if it should practically become a business house rather than a home, it would then cease to be exempt. The owner had the privilege of using any part of the building for his family; the basement, first floor, or second floor; the exemptions do not depend upon so frail a thread as which part of a dwelling a family must use, nor does the architecture of the building, or the question whether it would be more convenient as a store than a dwelling-house, decide its character; the test is whether the building was used as a residence, not nominally, but actually. We believe it was in fact the residence of plaintiffs. It certainly was the only home they had, and we believe it came within the provisions that exempt it from forced sale. (Umland v. Holcombe, 26 Minn. 288; Phelps v. Rooney, 9 Wis. 70; Kelly v. Baker, 10 Minn. 154; Gainus v. Cannon, 42 Ark. 503.)

The remaining objection, that the shed or addition was not occupied as a residence, can be disposed by saying it was simply an addition to the main building, and is exempt.

We recommend that the judgment be affirmed.

By the Court: It is so ordered.

All the Justices concurring.