268 P. 799 | Kan. | 1928
The opinion of the court was delivered by
The questions involved here are whether a widow had abandoned a homestead, whether a purchaser of the land in question obtained a good title thereto, and whether a judgment creditor of the widow — the bank — had a lien on certain proceeds of the sale.
The facts substantially are as follows: Elmer Roberts, husband
The trial court found that May Roberts had an undivided one-fourth interest in the north eighty acres of land in question; that neither she for herself nor as guardian of the minors had abandoned the land as a homestead; that the purchaser, Ray Ross, took title thereto free from the lien of the judgment of the First National Bank and had a clear title; that May Roberts, guardian, had an undivided one-fourth interest in the $1,000 check; that it is personal property, and $250 of it should be applied on the judgment in favor-of the First National Bank, the other $750 to be paid to May Roberts, guardian of the minors, for their use and benefit.
The bank contends that she abandoned her homestead rights to the land in question; that the probate court exceeded its jurisdiction when it ordered the title to the money and property to be taken in the name of the children, on the exchange with Ross; and that the $1,000 held by R. L. Hamilton had lost its exempt character because it was not necessary for the acquirement of a new homestead.
We are of opinion the evidence was ample to sustain the findings of the court, and from the findings it is'perfectly apparent the judgment was not a lien on the land traded to Ross. We are of opinion, also, that the issues before the court did not warrant payment of any part of the one thousand dollars to the bank. The money was placed in escrow with Hamilton to -await the outcome of the issue as to whether or not Mrs. Roberts and the children had abandoned the homestead, and since the court on sufficient evidence found that they had not, it was not proper to order the funds- in escrow or any part thereof to be paid to the bank, nor was the judgment a lien on the personal property.
Under all the circumstances the bank was entitled to no part of the proceeds.
The judgment is modified to the extent of denying the bank a right to partake of the funds in question, and as so modified is affirmed.