47 Kan. 611 | Kan. | 1892
The only question involved in this case is, whether lot number 5, in block number 16, in the city of Bunker Hill, in Russell county, was and is exempt as a homestead from a certain attachment and judgment and order of sale. The attachment was levied upon the property on June 30, 1888. The judgment was rendered on October 8, 1888, and the property was sold on an order of sale issued on such judgment on January 26, 1889; and on March 2,1889, Andrew Hill, who was the defendant below and the judgment debtor, and who is now the defendant in error, moved the court to set aside the sale, upon the ground “that at the time of the rendition of said judgment, said lot 5, block 16, was, and for a long time prior thereto had been and ever since has been, a part of the homestead of said defendant and his family, used and occupied as such, and exempt from seizure and sale by virtue of process issued on said judgment.” The court sustained the motion, and the plaintiff, M. Hoffman, brought the case to this court for review.
As the court below found in favor of Hill, the party claiming the property as his homestead, and against Hoffman, the party claiming under the attachment, the judgment, the order of sale, and the sale, it will be proper for this court to construe the evidence introduced upon the motion to set aside the sale liberally, for the purpose of upholding the views of the court below; and construing the evidence in this manner, we think the facts of the case are substantially as follows: For several years prior to the levy of the aforesaid attachment, Hill was the owner of lots numbers 5 and 6, in block number 16, in the city of Bunker Hill. These lots adjoined each other and constituted only a single tract of land, and together contained only about one-eighth of an acre. Hill was the head of a family consisting of himself, his wife, and an adopted daughter. There was a building on lot number 6, the porch of which extended over the boundary line between the two lots and onto lot number 5, which building Hill and his family
We think the decision of the court below in this case must be affirmed. It has uniformly been held by this court, from the decision made in the case of Morris v. Ward, 5 Kas. 239, in 1869, down to the present time, that, except for taxes, purchase-money, and improvements, no alienation of the homestead of a husband and wife could be effected, nor any lien or incumbrance placed thereon, except by the joint consent of the husband and wife. And it follows from the decisions made by this and other courts of last resort that it makes no difference that the homestead or a part thereof may be used for some other purpose than as a homestead, where the whole of it constitutes only one tract of land not exceeding in area the amount permitted to be exempted under the homestead
We do not think that it is necessary to discuss any of the other points presented by counsel. The judgment of the court below will be affirmed.