First National Bank v. Warner

22 Kan. 537 | Kan. | 1879

The opinion of the court was delivered by

Brewer, J.:

The pivotal question in this case is, whether the premises conveyed on Sept. 13, 1875, by Josephus Warner, were-exempt as his homestead. The facts are these: Josephus Warner settled upon the land in 1857, and with the exception of the years 1861 and 1862 lived there continuously until the execution of the deed. His family at first consisted of a wife and three children. In 1869 his wife died. He did not marry again. In October, 1873, the oldest son married, and moved to a home of his own. The other children, John and Anna, remained and were living with him when he executed the deed to them. John was twenty years of age and Anna was twenty-one. The latter married in March, 1874, but with her husband was still on the place. At the time of her marriage, Mr. Warner rented the farm for one year to his daughter and her husband, reserving a place and living for. himself, and in March, 1875, the same arrangement was continued. John was also to have a place there, though he worked for wages with Anna’s husband. The deed was made to the children on the place, and was in consideration of an agreement to take care of their father during the remainder of his life, and was made in consequence of his failing eyesight and health.

The district court ruled that the place was the homestead of Josephus Warner, and therefore exempt; and such ruling, we think, must be sustained. It was, as it had been for nearly a score of years, the residence of himself and his family. Time and death had brought changes into that family, so that now only one remained legally dependent upon him, and under his control; but it was still the residence of that son and his father. True, the boy was young and strong, and the father old and feeble, (the former better able to support the latter than the reverse,) and the boy in fact earning wages by labor for another; but the fact that the legal head of the family, through age or sickness, is not actually supporting or able to support the other members, does .not destroy the family; and surely such misfortune is no reason why the kindly interest of the homestead law should cease to have effect.

True, also, he had leased the premises from year to year; but a lease is only a temporary abandonment, and this reserved .á place for living for the father and son. (Hixon v. George, 18 Kas. 253.) We think, within the clear intent of the constitutional provision, this was “ the homestead, occupied as a residence of the family” of Josephus Warner.

The judgment will be affirmed.

All the Justices concurring.