22 Kan. 594 | Kan. | 1879
The opinion of the court was delivered by
The petition in error and accompanying transcript in this case shows, that at the September term, 1876, of the district court of Chautauqua county, the plaintiff herein (Mouriquand) recovered a judgment for $654 against the defendant Hart, in an action founded upon an alleged tort; that on or about January 10th, 1877, a general execution was issued out of said court to collect said judgment, directed and delivered to the sheriff of said county, who, on the same day, being unable to find goods and chattels of said Hart, and so indorsing on said execution, levied the same upon lyff acres of land situated in said county, and caused the same to be appraised and advertised for sale, to satisfy said judgment and costs; that said defendant Hart, prior to the first day of the term of court at which said judgment was rendered, and from that time until the said levy, was the owner of said land in fee simple absolute; that said l-j-|-„- acres formed a portion of a tract of 112 acres (not within the corporate limits of any town or city), upon which Hart resided with his family during all the period aforesaid — he being the head of a family and entitled to the benefit of the homestead exemption laws of the state; that all of said 112-acre tract of land, except the lxf-o acres so levied upon as aforesaid, was farming land, and used by Hart for farming purposes; that the lyf-§- acres so levied upon were) during all the period aforesaid, exclusively occupied and used as the site of a public grist-mill, such mill and its proper appurtenances being located and in operation thereon; that no farm buildings or other proper farm appurtenances were on said tract so levied upon, nor did Hart with his family actually reside
After such levy, and prior to the day of sale, Hart filed in the district court aforesaid a petition for an injunction against said Mouriquand and said sheriff, claiming said entire tract of 112 acres, and all improvements thereon, as his homestead, and exempt from sale upon execution; that the proceedings aforesaid were creating a cloud upon his title; and asking that such levy and intended sale, and all attempts to subject said land to the payment of said judgment be perpetually enjoined. A temporary injunction was allowed upon this petition, and the proceedings were stayed. Defendants in said cause, by duly-verified answer, set up the foregoing state of facts, to which plaintiff demurred generally. At the March term, 1877, of the district court, said demurrer was sustained, and judgment rendered thereon, making said injunction perpetual, and against defendants for costs; to which Moriquand, defendant below, and plaintiff in this court, duly excepted. This cause is brought here to reverse said last-named order and judgment of the district court.
We think the petition in error must be sustained. We had occasion in the recent case of Ashton v. Ingle, 20 Kas. 670, to examine this question of exemption, in relation to the use put upon and the manner of occupation of premises claimed to be exempt, and any extended discussion of the question will therefore be unnecessary in the present case. Counsel would distinguish this case from that, in the fact that in that case the portion of the premises held not exempt was leased to tenants, and that therefore the owner had no occupation and no right of occupation, having transferred away both, while in this the premises levied upon were in the actual occupation of the owner. Instead of leasing the mill to others, he was running it himself. He therefore, in the language of the constitution, both owned and occupied. There is of course a difference between the cases, as there is a difference in the use to which the disputed premises were put; but this difference is not such as to remove this case out of the rule
The judgment of the district court will be reversed, and the case remanded with instructions to overrule the demurrer.