Augir v. Connelly

• Decision Date: 01 February 1896
• Docket Number: 59
• Citation: 44 P. 22,3 Kan.App. 618
• Court: Kansas Court of Appeals
• Parties: EDGERTON & AUGIR v. EDWABD CONNELLY

44 P. 22

3 Kan.App. 618

EDGERTON & AUGIR v. EDWABD CONNELLY

No. 59

Court of Appeals of Kansas, Southern Department, Western Division

February 1, 1896

Opinion Filed March 9, 1896.

MEMORANDUM.--Error from Rush district court; V. H. GRINSTEAD judge. Application by Edgerton & Augir, as plaintiffs for appointment of a receiver and for an order to sell the real estate of Edward Connelly, defendant. Application denied and motion overruled. Plaintiffs bring the case to this court. Reversed. The opinion herein, filed March 9, 1896 states the material facts.

Judgment reversed and cause remanded.

W. H. Russell, for plaintiffs in error.

H. L. Anderson, for defendant in error.

COLE J. All the Judges concurring.

OPINION

COLE, J.:

On the 10th day of September, 1890, Edgerton & Augir obtained a judgment against Edward Connelly in the district court of Rush county, Kansas. On the 3d day of September, 1891, proceedings were commenced in said court to subject the equitable interest of said Connelly in and to a certain piece of real estate situated in said county to sale for the satisfaction of said judgment. To these proceeding Connelly interposed the defense that the land in question was his homestead, and therefore exempt under the constitution and laws of this state. The district court under the evidence sustained the defense of Connelly and refused to order the sale of his interest in the premises, and from this ruling and judgment Edgerton & Augir bring the case here for review.

There is but one question in this case, and that is, Did the trial court err in holding under the evidence in this case that the real estate in question was the homestead of the judgment debtor? The facts in this case as shown by the evidence are as follows: In April, 1885, the defendant purchased the land in question from the state of Kansas, it being school-land. At that time he was a married man, but his family was residing in the state of Illinois. He erected a small house upon the land, and, after occupying the same for a few weeks, returned to the state of Illinois, and in August, 1887, came back to Rush county with his family. He found the house which he had erected practically in ruins, and neither he nor his family resided on the tract of land in question until the day proceedings were commenced to subject the land to sale. During all the time from the date of his return he cultivated a portion of the land, and after the date of the rendition of the judgment in this case, and some time in April of the year 1891, he excavated a cellar and hauled some rock upon the premises for the purpose of completing the same. The record discloses that the defendant in error did not own any other land, but had a timber-culture filing upon another tract in the same county.

We are of the opinion that the court erred in holding that the defendant in error had established a homestead upon the land in question under the constitution and laws of this state. The case comes almost squarely within the rule laid down in Ingels v. Ingels, 50 Kan. 755, 32 P. 387. In that case ALLEN, J., in delivering the opinion of the court, said:

"Whatever our views might be as to the propriety of allowing a debtor to hold a tract of land for a homestead, whether occupied or not, we are bound to declare the law as we find it; and while this court in the cases cited has given the constitutional provision a liberal construction, for the purpose of fully securing to needy debtors the beneficent exemption secured to them by the constitution, yet we may not wholly dispense with the requirement of occupancy."

Our constitution and statutes provide that a homestead to the extent of 160 acres of farming lands, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with the improvements upon the...