32 Kan. 646 | Kan. | 1884
The opinion of the court was delivered by
The only question involved in this case is, whether the north 49 feet of lot 1, in block 9, of Clark & Rees’s addition to the city of Leavenworth, is, and has been since September 16, 1875, a part of the homestead of the defendant, James Donohue? The facts of the case appear to be substantially as follows: In 1875, and prior thereto, and for some time afterward, Donohue owned all of lots 1 and 2 in the block aforesaid, both lots being within one inclosure and constituting a single tract of land 90 feet wide by 140 feet long, each lot being 45 feet wide east and west, and 140
We think the decision of the district court is correct. The property levied upon was a part of the same tract of land which was occupied by the defendant as his homestead. It was a part of his inclosure. No fence or anything else separated it from his other land. No other person ever lived upon it or occupied it as a homestead; and the defendant never rented it to any person for any purpose, but always occupied it himself and used it himself, whenever he had any occasion to use it. It is true, however, that at one time he permitted the man
The plaintiff seems to rely almost exclusively upon the decision of this court, made in the case of Ashton v. Ingle, 20 Kas. 670; but that case is very different from this. In that case the following language is used in the opinion, which will show upon what theory that cause was decided:
“ But the law, however, does not use the words ‘homestead’ and ‘occupied’ and ‘residence’ in any narrow or limited sense. The word ‘homestead’ does not include merely the dwelling house, but it also embraces everything connected therewith which may be used and is used for the more perfect enjoyment of the home — such as out-houses for servants, for stock, or property, gardens, yards, and fanning land to the extent of 160 acres, or land within the limits of any incorporated town or city to the extent of one acre. The word ‘occupied’ does not always require an actual occupancy, but it may sometimes permit a constructive occupancy. The word ‘ residence,’ like the word ‘homestead,’ is not confined merely to the dwelling house, but it may also include everything connected therewith used to make the home more comfortable and enjoyable. But the words ‘homestead’ and ‘residence’ cannot be intended to include some other and independent family’s home and residence. Where houses and lots are rented for a money rent to tenants, who are not servants or employés of the owner, with the intention that such houses and lots shall become the homes and residences of such tenants and their families, and they actually do become the homes and residences of such tenants and their families, the owner certainly cannot then claim that such houses and lots are a part of his own home and residence, although they may adjoin the same.” (20 Kas. 681, 682.)
It is often the case that the owner of a tract of land, which he occupies and claims as his homestead, does not actually use every part and portion thereof; but so long as the whole tract is devoted to the purposes of a homestead, and not to any other
The judgment of the court below will be affirmed.