84 P. 122 | Kan. | 1906
The opinion of the court was delivered by
William H. Bush & Co. obtained a judgment against B. A. Adams before a justice of the peace. A transcript of the judgment was filed in the district court. An. execution was issued and levied upon the interest of the defendant in a tract of real estate, which was sold to the plaintiffs, who filed a motion for the confirmation of the sale. Adams and his wife moved to set the sale aside upon the ground that the real estate in question was their homestead, and, as such, exempt from seizure. Upon a hearing the court sustained the claim of exemption and set aside the sale. Bush & Co. prosecute error.
The trial court made detailed findings of fact, and
In order that property may be exempt on the ground of its homestead character it must be “occupied as a residence by the family of the owner.” (Const, art. 15, §9; Gen. Stat. 1901, §3016.) In Kansas, and in other states having similar constitutional and statutory provisions, it is held that such occupancy need not always be actual or physical. The courts deal liberally with claims of homestead exemption asserted in good faith, but cannot extend the right beyond the language of the law defining it. It is difficult to derive from the decisions a general rule of universal applica
“A bona fide and clearly defined present intention to acquire and occupy certain premises as a homestead, evidenced by overt acts in fitting them up for such a purpose, and followed within a reasonable time by actual physical occupancy, the delay being only for the time necessary to effect removal to the premises, or to build needed improvements or repairs, or to complete a dwelling-house in process of construction, or the like, render the land exempt as a homestead from the time of its acquisition with such intent.”
The cases bearing upon the matter are collected in notes upon the page cited and that following, and show that the doctrine of constructive possession has seldom been pressed beyond the limits indicated by the text. The defendants in error rely upon the authority óf a line of Kansas decisions of which Monroe v. May, Weil & Co., 9 Kan. 466, is a type. It was there said that “a purchase of a ho’mesteád with a view to occupancy, followed by occupancy within a reasonable timé, receives from the time of purchase a homestead exemption from seizure upon execution or attachment.” The very purchase of a property designed to be used as a homestead is itself, however, an overt act that might under some circumstances tend to give expression to súch purpose. Here that element is entirely wanting, and there is nothing to take its place. If Adams and his wife, by simply making up their minds to regard as their home the farm which they already owned and to move to it as soon as the purpose of á temporary stay in Pomona should bé accomplished, could render it exempt from seizure, then it would follow that premises could be impressed with a homestead character by a mere méntal process unaccompanied by any physical act whatever — a proposition which the authorities uniformly deny. For a somewhat similar case see Savings Bank v. Wheeler’s Adm’r, 20 Kan. 625. Thé surrendéring to the creditors of the premises in Pomona occupied by Adams and his family
The judgment is reversed, with directions to confirm the sheriff’s sale.