47 Kan. 667 | Kan. | 1892
Opinion by
In 1873, R. W. Schoonmaker purchased the southeast quarter of section 11, township 29, range 23, Crawford county Kansas, and, with his family, resided thereon until March, 1884. He then moved off the premises, and was away during the years 1884 and 1885. He went back to the premises in March, 1886, but left again in May following, moving upon and cultivating another farm in the neighborhood owned by one Reed during the year 1886. In the spring of 1887, he returned to the farm with his family, as the tenants of Brown and Bell, he and his son paying Brown and Bell the sum of $200 rent for the place that year. The
“ It is fully understood and agreed by said first parties, that if they fail to pay the said several sums of money to said second parties on or before the time stated above, to wit, April 1, 1887, then said second parties are entirely released from any and all obligations to convey said premises to said first parties, and time is the essence of this contract. And if said first parties make any default in any of the conditions of this agreement, then they will surrender the possession of said premises quietly and peaceably to said second parties, or their heirs or assigns. It is further understood and agreed, that until the 1st day of April, A. D. 1887, or until the payment of the several sums as stated, the said parties of the first part occupy said premises as the tenants of said second parties, and disclaim any other or further, or different title or interest therein.”
Schoonmaker and wife did not redeem, but surrendered to Brown, Crawford and Bell the possession of the premises
There are several questions raised in this case and discussed in the briefs of counsel, but we think the real question in the case is, whether or not the judgment of D. M. Osborne & Co. was a lien upon the southeast quarter of section 11, township 29 south, of range 23 east, in Crawford county, Kansas, when execution was issued upon said judgment and a part of said land was levied upon and sold in satisfaction thereof. Said land having formerly been the homestead of R. W. Schoonmaker and wife, and occupied as such for many years, the question as to whether or not said judgment was a lien upon said land involves, first, the character of the absence of Schoonmaker and wife from said land during the years 1884 and 1885 and a portion of the year 1886; and, second, the character of the instrument, in form a deed, executed and delivered by said
A person may be absent from his homestead without abandoning it as such, and without losing his homestead right therein. It depends upon the character of his absence as to whether or not he loses his homestead right thereby. If a person leaves his homestead to acquire a residence elsewhere, he loses his homestead right by such absence. If, though absent from a homestead, a person still regards it as home, and intends to return thereto, he does not lose his homestead right therein. Did the Schoonmakers intend to abandon their homestead when they left it in 1884, or afterward, prior to their return in the spring of 1886, and the making of the deed to Brown, Crawford, and Bell? If they did, then the moment they left said homestead without intending to return,
It is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.