105 Kan. 112 | Kan. | 1919
The plaintiff appeals from a judgment refusing to confirm a sheriff’s sale of real property, and setting aside that sale. The sale had been made pursuant to a levy under an execution issued on a judgment rendered in favor of the plaintiff and against the defendants. The defendants claimed, and the court found, that the property was their homestead. The plaintiff contended that the property was not ■ the defendants’ homestead, and that contention is now presented to this court. This necessitates an examination of the evidence to see whether there was evidence sufficient to support the finding of the court. The only oral evidence abstracted is that of the defendants. Their evidence showed that John Hartman purchased the property in 1876; that he lived thereon with his family for more than thirty years; that the defendants then left the property in question and went to a farm which Hartman rented in Reno county; that the defendants lived on several rented farms in that county, and afterward moved back to Hutchinson, but did not move on to the premises in controversy until about the time the execution was levied thereon; that when the defendants moved to the country they went for John Hartman’s health; that during all of the time they were absent from the property in contro,versy they intended to, move back on to it; that for that reason they had not sold it; and that they did not acquire a homestead elsewhere. That evidence tended to show that the homestead had not been abandoned; however, there was evidence which did tend to show that the homestead had been abandoned. That evidence showed that John Hartman rented the property to other parties; that he voted in the several townships in the county in which he lived; that he was elected road overseer in one of these townships ; and that he was a candidate for the office of sheriff of Reno county, and advertised himself as a farmer candidate from the township in which he was then living.
Under the evidence, it was the duty of the trial court to determine whether or not the homestead had been abandoned. There was evidence on which the court could find either way. That compels this court to apply the rule that where the finding
The judgment is affirmed.
