40 Kan. 428 | Kan. | 1888
Opinion by
Two questions are presented for examination as errors: First, that the conclusions of law are not supported by the findings of the court; and second, that the conclusions of fact are inconsistent with and not supported by the evidence. The undisputed facts show that the defendant was a resident of the state of Kansas, residing upon the lots in controversy as the home of himself and family, from 1872 until 1884, at which time defendant’s wife was an invalid, and was under the care and treatment of the plaintiffs as her physicians, and that upon their recommendation she was taken by her husband to Hot Springs, Arkansas, and elsewhere in the south, for her health; that at the time of the levy of the attachment they were residing in Galveston, Texas; that at the time of leaving Kansas they left their furniture, household goods and fixtures in their house, and the goods continued to remain there in the care of a son and daughter for more than one year, after which the goods were stored on the lot in a broom factory, and the house rented, and the rent received by the defendant. The object of going away was for the purpose of seeking to benefit the health of the defendant’s wife. No permanent residence elsewhere was intended. The findings of fact by the court show that as soon as his wife’s health improved, he expected to return and occupy the property as his home. This finding of fact was made upon the uncontradicted testimony of the defendant and the defendant’s son. The defendant testified that he was a resident of South Topeka, Kansas; that the property attached was his homestead ; that he had no other homestead; that he intended to return to it just as soon as the state of his wife’s health would permit; and that it was never his intention to remain away permanently, but to return as soon as the circumstances would allow. His son testified that his father went away for his mother’s health, under advice of plaintiffs, and that he in
It has been the policy adopted in Kansas that the homestead and exemption laws should be liberally construed, and in the light of that policy this case must be viewed. (Edwards v. Fry, 9 Kas. 425; Gilworth v. Cody, 21 id. 705.) Where it is once shown that a residence has been established, such residence is presumed to continue until the contrary is shown. (Keith v. Stetter, 25 Kas. 100; Dupuy v. Wurtz, 53 N. Y. 556.) The court found that the defendant was a resident of Kansas from 1872 until 1884, and such residence must be presumed to have continued until the contrary is clearly shown. The defendant himself testified that he was still a resident here, although temporarily absent, and that he intended to return and not to permanently remain away. No evidence was offered to contradict this statement. It has been held by this court in Hixon v. George, 18 Kas. 253, that a temporary residence elsewhere, or a temporary absence from the state of the debtor and his family, where there is an intention to return, is not sufficient of itself to lose a residence or a homestead here. Where a residence is once established, it requires two conditions or things to destroy it; first, a removal; second, an intention not to return. An intention to go away and never to return will not destroy the residence; neither will the actual removal from the state without the intention to remain away and not return. (Adams v. Evans, 19 Kas. 174; Ballinger v. Lantier, 15 id. 608.) The intention of a party must be determined by the surrounding circumstances. (Dupuy v. Wurtz, 53 N. Y. 556.) The court might disbelieve the statement of a party as to his intentions, and yet find the same state of facts from surrounding circumstances. Where one goes away leaving behind him part of his family, his household goods, his home, and the circumstances under which he goes are such as to indicate only a temporary absence, such facts, coupled with the statement of his intention to return, uncontradicted by other evidence, is conclusive and binding, and must not be
The grounds for .the attachment being the non-residence of the defendant, if it is found that that ground is untrue, it is then immaterial to inquire further; for if the ground for the attachment was not true, it made no difference whether the property was a homestead and therefore exempt, or not. The attachment must stand or fall on the grounds alleged in the affidavit, and where it is once found that those grounds are not true the attachment must fall, even if afterward the property might be subject to the judgment. We therefore will not , determine the question of how much of the property in question was a part of the homestead of the defendant.
We are of the opinion that the conclusions of law found by .the court are not supported by the findings of fact, and that some of the findings of fact are not supported by the evidence.
We therefore recommend that the cause be remanded, with instructions to the court below to sustain the motion, and discharge the attachment.
By the Court: It is so ordered.