58 Kan. 485 | Kan. | 1897
This case involves questions of homestead exemption and selection. September 28, 1892, the Lenora State Bank, defendant in error, recovered a money judgment against J. S. Peak, plaintiff in error, in the District Court of Norton County. At that time, and until after the levy of execution hereafter mentioned, plaintiff in error was the owner of a number of contiguous tracts of land, amounting to 760 acres, of which the land in question was a part. These lands embraced the northeast and southwest quarters of section seventeen, and the northeast quarter, and the north half of the southeast quarter, of sec
The evidence in the case, which was almost entirely that of the plaintiff in error, and which in one or two particulars is somewhat lacking in clearness and precision of statement, shows that, in 1873, the plaintiff
During the period of his residence upon this last-mentioned tract, he built a stone house, and made other improvements thereon, at a cost of about two thousand dollars. He, however, always claimed the lands in section twenty as his homestead; or, as he denominated it at one point in his testimony, his “regular home.” He always intended to sell the land upon which he resided, if he could do so, and move back on the lands in section twenty. However, after becoming financially embarrassed, he offered to sell the tract claimed as a homestead, for the purpose of enabling him to pay his indebtedness ; but failing to secure the price asked, did not do so. To quote his testimony in one particular : “I expected to save some property to shelter me, but if I had to come down to one piece of land I always intended to hold that piece of land in twenty.” At the time of the creation of the indebtedness .to the Bank, upon which the judgment in question was rendered, he told the managing bank-officials that he claimed the land in
September 28 or 29, 1893, with his family, consisting of his wife and father-in-law, a very aged and infirm old man, he moved out of the stone building on section seventeen into a cheap, illy constructed house on the claimed homestead in section twenty ; leaving, however, part of his household furniture in the vacated building. As the cold weather of the succeeding winter came on, he went back into the stone house on section seventeen, on account of the inability of his wife’s father to live in the poor and illy constructed building on section twenty. They remained in the old home until after the sale in question ; moving back upon the claimed homestead only a few days before the hearing of the motion to set aside the sale. In the meantime, however, an additional building costing about sixty dollars had been erected on the land in section twenty. The removal from one place to another was made under the advice of counsel, and to save the land as a homestead. Upon this state of facts, the question arises whether the claim of homestead exemption of the land in section twenty can be sustained.
■ Our judgment is, that the legal pxdnciples forming the basis of the decision of the Coux-t of Appeals, and
The vaguely formed, indefinite, and conditional intention of the plaintiff in error to occupy the claimed homestead, cannot avail to impart to it the homestead’ character, in the face of his long-continued residence elsewhere. The homestead character must attach to land before it becomes impressed with a judgment lien. Bullene v. Hiatt, 12 Kan. 98 ; Ashton v. Ingle, 20 id. 670. A homestead can only exist in a single tract or contiguous tracts. Randal v. Elder, 12 Kan. 257 ; Linn Co. Bank v. Hopkins, 47 id. 580.
The dwelling house upon the homestead is an inseparable part of it. There can be no homestead without a place of family-dwelling, either actual, or in quell contemplation as amounts to the same thing. The dwelling house is the nucleus of all the homestead interests and affections, and hence whatever homestead selection is made must include the family roof-tree. We do not know that this has been specifically remarked in any of the decisions, but it results as a principle from the nature of the homestead exemption, and is implied in all the cases. Hence, the plaintiff in error was not entitled to make a homestead selection which did not include the house in which he lived. He was entitled, however, to select a homestead of such contiguous tracts as would include the one upon which he resided. He lived upon the south half of the southeast quarter of section seventeen. The' north half of the northeast quarter of section twenty, one fourth of a mile in width, intervenes between that and the claimed homestead. At the time of the levy
Of course, we have no knowledge of the complications which may have occurred since the case arose, caused by the shifting of titles to the various tracts out of which the homestead selection might have been made, but we apprehend none have occurred which can operate to prevent the selection of eighty acres out of the larger tract originally claimed as a whole, and its occupancy in a reasonable time hereafter by the homestead claimant.