95 Kan. 331 | Kan. | 1915
The opinion of the court was delivered by
In this action plaintiffs sought to recover damages for the levy of an execution on lands claimed by them as their homestead. The.judgment was for defendant, and plaintiffs appeal.
The errors assigned relate to the instructions and the refusal to grant a new trial. Plaintiffs’ abstract sets forth certain requested instructions which the court refused, and two instructions which were given; also the evidence of Mrs. Rose, but makes no reference whatever to evidence offered by the defendant directly contradicting her testimony. The certificate recites that this is a true and correct abstract “including the charge of the court and special instructions asked for by plaintiffs so far as the same are set out and referred to by us and used by us in support of the arguments on the errors complained of.” ■ This is not a fair way to present for consideration errors of the kind and character assigned in the present case. Defendant’s counter-abstract shows the fifteen instructions given by the court and also the evidence favorable to the plaintiffs as well as that favorable to the defendant, together with the special findings of the jury, which are against the plaintiffs. The instructions given fully covered the law governing the case, and, moreover, those which the court refused do not correctly state the law.
The plaintiffs requested the court to instruct that if at the time of the levy it was their intention later to occupy the premises as their homestead and they regarded it as such this would constitute the premises their homestead even though they had never actually lived thereon. They also requested an instruction to the effect that if the reason they had not actually lived on the land was because there was no house thereon, the same was a homestead from and after the time they tilled the land with the intention of claiming the same as a homestead and living thereon as soon as they were able to build a house. These instructions were properly refused; they do not state the law as applied to the facts.
In the instructions given the court, after defining a homestead, charged that if the land was at any time occupied by plaintiffs in good faith as their homestead it would continue to be such until by some act of theirs equivalent to an abandonment of the homestead it became divested of that character; that while actual occupancy is a necessary and essential element, it need not be instantaneous and contemporaneous with the purchase, but there must be a present intention to oc
The authorities cited by plaintiffs are not in point.. In Coal Co. v. Judd, 6 Kan. App. 487, 50 Pac. 943, and in Moses v. White, 6 Kan. App. 558, 51 Pac. 622, it was conceded that the owners of the land had established a homestead thereon, and the question was whether they had left it for a temporary purpose with the intention of returning or whether they had abandoned it. It was held in both cases that this was largely to be determined by the intention. It was not conceded in this case that the plaintiffs ever occupied the land as their homestead. The findings of the jury, which are shown in the counter-abstract but not referred to in the abstract of the plaintiffs, are that the plaintiffs never resided upon the land at all.
We are unable to concur in the statement in plaintiffs’ brief that “after the house blew down in 1903,
The defendant called as witnesses five or six persons who had lived for a great many years in the immediate neighborhood of the land. Some of them owned and occupied land adjoining that in question. All of them were acquainted with the plaintiffs. Most of them had known Mrs. Rose from the time she was a little child, and her husband since the marriage. These witnesses testified that the plaintiffs had never resided upon the land. The jury appear to have believed the testimony of the neighbors. It is obvious that there was no error in refusing to grant a new trial.
The judgment is affirmed.