23 Kan. 551 | Kan. | 1880
This was an action to foreclose a mortgage-given by defendant in error, G. A. Manners, to plaintiif in error; and the question is, whether such mortgage was invalid by reason of the facts that the mortgaged premises were the homestead of Manners and his wife, and that his wife did not join in the mortgage., The mortgage was executed April 22, 1875, and on its face purported to be a mortgage of personal property, to wit, of a one-and-one-half-story frame house situated on the lot hereinafter named. The district court found in favor, of the defendants in error, and while rendering a personal judgment against G. A. Manners for the note, refused to decree a foreclosure of the mortgage.
The following facts were admitted by the parties on the trial, or were introduced in evidence: In 1873, G. A. Manners leased lot 24, in block 47, in the town (now city) of Garnett, of William Hamilton, for the purpose of erecting a frame building thereon. The lease was for a term of two-years, with the privilege of holding and using the lot for a longer time; provided, however, that G. A. Manners was to give possession of the lot whenever William Hamilton-should sell it, or want to build upon it himself. In either case, G. A. Manners had the right to remove the building he should erect on the lot. G. A. Manners has continued to occupy the lot with his building from year to year. He used the north part of the ground floor for a butcher shop; his wife, the south-part of the ground floor for a milliner shop. The upper story, and part of the south room down stairs, were occupied by the family for a residence.
The testimony does not dis.close at what time in 1873 the lease was made, nor whether the mortgage was executed before the expiration of the term of two years named in it. Perhaps this is not very material, for the lease provided for a holding after that term, and probably at the same rental, two dollars a month.
The question arising on these facts is, whether a leasehold
It will be noticed that exemption from liability for indebtedness, and inalienability without joint consent, go hand in hand in the matter of a homestead. That which secures the one, guarantees the other. They coexist, or they do not exist at all. While the authorities are not uniform, yet we think the general drift of the decisions is in harmony with these
But, say counsel for plaintiff in error, the mortgage was not upon the lease-hold estate, the term in the land, but upon the building; that Manners listed and paid taxes on this as-personal property; that he had the right to remove the building ; that it was therefore personal property, and as .such Manners mortgaged it. To this, it is a sufficient reply that it was so listed and taxed by virtue of express statutory provision. (Comp. Laws 1879, p.522, §31); that it was built upon the land, and that not only the land — by whatever title it is held — is exempt and inalienable without joint consent, but also “all the improvements on the same.” Whatever might be the case after the building was in fact removed, the homestead right remains until such removal.
Another proposition of counsel is, that this was not a homestead, because partly used for business purposes. Upon the evidence as it is preserved, we cannot say that the court erred in holding this a homestead. The size of the building, further than that it was a one-and-one-half-story house, is not shown. Whether chiefly used for business or residence purposes, does not clearly appear. The fact that a party may
The effect of the temporary abandonment of the homestead is disposed of by the decision of this court in Hixon v. George, 18 Kas. 253.
There being no other question in the case, the judgment will be affirmed.