39 Kan. 342 | Kan. | 1888
Opinion by
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
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
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.