Beard v. Montgomery Ward & Co.

• Decision Date: 17 July 1974
• Docket Number: No. 47313,47313
• Citation: 524 P.2d 1159,215 Kan. 343
• Parties: Willa BEARD, Appellant, v. MONTGOMERY WARD AND COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 1159

524 P.2d 1159

215 Kan. 343

Willa BEARD, Appellant, v. MONTGOMERY WARD AND COMPANY, Appellee.

No. 47313.

Supreme Court of Kansas.

July 17, 1974.

Syllabus by the Court

1. The trier of fact is the sole judge of the credibility of a witness. While it cannot arbitrarily or capriciously refuse to consider the testimony of any witness it is

not obliged to accept and give effect to any evidence which, in its honest opinion, is unreliable, even if such evidence be uncontradicted.

2. Property is not exempt as a homestead unless it has been occupied as a residence by the family of the owner. (K.S.A. 60-2301.)

3. 'Residence' is substantially equivalent to 'domicile' and may be defined as the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention of returning. (K.S.A. 77-201, Twenty-third.)

4. Where the plaintiff's testimony taken in its most favorable light reveals that her alleged husband stayed in her home for no more than a month at a time on two separate occasions over a period of more than two years, and that he on each occasion took away with him in a suitcase everything he brought, the trial court did not err in finding that plaintiff did not sustain her burden of proving that her home was his 'residence.'

5. If a case has been tried upon one theory it is too late for a plaintiff to mend his hold and advance another theory in his motion for a new trial which might have been but was not presented at the trial.

6. Our homestead exemption in favor of a debtor with a family does not create an unreasonable classification so as to deny a single person the equal protection of the laws.

7. In an action to set aside a sheriff's deed issued on an execution sale, it is held the trial court did not err in refusing to set aside the deed or in overruling plaintiff's motions for a new trial and to set aside the judgment.

Ronald C. Newman, of Weeks, Thomas, Lysaught, Bingham & Mustain, Chartered, Kansas City, argued the cause, and James P. Zakoura, Kansas City, was with him on the briefs for appellant.

James N. Snyder, of Snyder & Snyder, Leavenworth, argued the cause, and James N. Snyder, Jr., Leavenworth, was with him on the brief for appellee.

FOTH, Commissioner:

This is an action to set aside a 1966 sheriff's deed, issued on execution against forty acres of land near Tonganoxie formerly owned by the plaintiff, Willa Beard. The trial court found she had no homestead exemption and refused to set aside the deed. It also overruled her post-trial motions for a new trial and to set aside the judgment, and plaintiff appeals.

In her petition, filed September 23, 1969, plaintiff's claim of a homestead exemption was based on a simple allegation that she was the owner and lived on the property on December 30, 1960. That was the day Montgomery Ward and Company, the defendant in this suit, filed an action against her on an open account. She made no defense to that action, and default judgment was entered against her in due course for $1,307.56, plus interest and costs. It is agreed that the lien of that judgment, under which the land was sold, attached on the first Monday in January, 1961.

Montgomery Ward apparently made no further collection efforts until November 9, 1964, when it caused plaintiff to appear in district court for examination as a judgment debtor. She testified that she was then living alone, and made no effort to correct counsel's statement that she was a single woman. When it appeared she had no money in any bank, counsel announced that he intended to have the sheriff levy on the 40 acres. He did just that, and the levy was made nine days later. The following June the sheriff advertised the property for sale, and Montgomery Ward bought it at the sheriff's sale on July 6, 1965. The sheriff's return indicates that from the proceeds he paid back taxes on the place for 1961, 1962, 1963 and 1964. The sale was confirmed July 29, 1965, with the redemption time fixed at one year. On September 30, 1966, the challenged sheriff's deed was issued. It was recorded December 7, 1967.

To establish a homestead it was incumbent upon plaintiff to show that the property was, at least at some time, 'occupied as a residence by the family of the owner.' (K.S.A. 60-2301; Kan.Const., Art. 15, § 9.) There was never any question but that she was the 'owner' of the land when the judgment lien attached. She had purchased it in April, 1958, taking a deed in the name of 'Willa Beard' and giving back a purchase money mortgage in which she was described as 'a single woman.' Her difficulty throughout the lawsuit lay in her efforts to establish that any member of her 'family' ever 'occupied' the land as a 'residence.'

On February 7, 1970, some four and one-half months after this suit was filed, plaintiff's first deposition was taken. (It was later introduced into evidence at trial.) In that deposition she testified that from at least the time she bought the farm in 1958 until some time in 1960 she had lived there in a husband-wife relationship with a William H. Barker. Although there had never been a ceremonial marriage, she frequently went by 'Willa Barker,' or 'Mrs. William H. Barker,' as well as by 'Willa Beard,' her maiden name. She had, it seemed, been married at least three times previously, although she could not at the time recall the name of any of her husbands. She was fairly confident that each of these marriages had been dissolved, although she was uncertain as to how, when or where the dissolutions had taken place. (Barker, it later developed, was legally married to someone else during this entire period; he had been married in 1948 and was divorced from his legal wife in the same district court in 1963.)

It also appeared that between the time she was served with process in the Montgomery Ward suit on January 9, 1961, and the time the default judgment was entered on January 31, 1961, she executed two separate deeds to the property. The first, on January 23, was a warranty deed to herself and her mother as joint tenants. The second, on January 26, quit-claimed her interest to her mother. She signed each as 'Willa Beard,' and in the first deed was described as 'a single woman.' Both deeds, of course, post-dated the judgment lien.

After this deposition was taken nothing further happened in the case for a year and a half until, in August, 1971, plaintiff's counsel was permitted to withdraw.

Despite such withdrawal counsel again made an appearance for plaintiff at the pre-trial conference on October 13, 1971. There, for the first time so far as the record shows, plaintiff claimed the homestead exemption to be based on her relationship with a George Fugett. Any claim of a common law marriage to Barker was specifically abandoned, and her first factual contention was specified as:

'a. Plaintiff legally married to George Fugett on September 26, 1958, in Vallejo, California, the marriage license being obtained in Fairfax, Solano County, California. They are still legally married.'

Her petition was amended by interlineation to reflect her new claim.

In the pre-trial order details of her three prior marriages and divorces were set forth, and she assumed the burden of producing at trial all four marriage certificates, plus decrees of divorce from the first three husbands.

The crucial stipulations in the pre-trial order were those limiting the issues:

'6. The issues of fact are:

a. Was plaintiff single or married on the first Monday in January, 1961?

b. Was plaintiff living alone on the first Monday in January, 1961, or was George Fugett living with her as her husband?

'7. Question of Law: Was this property the homestead of plaintiff on the first Monday in January, 1961?'

With the issues so framed the case went to trial a year later, in December, 1972. (In the meantime a second deposition of plaintiff was taken, which was also admitted into evidence at trial.) Marriage certificates for the three prior marriages were produced, but none as to Fugett. As to that marriage she testified that she went to California in September, 1958, married him on the 26th in Vallejo, spent one night with him at a motel in an unknown city, and promptly returned to Tonganoxie and the waiting Barker.

Fugett, it seems, was some type of sergeant in one of the armed forces-she didn't know which one-and went overseas again shortly after the marriage. She didn't see him again for six months or a year, i. e., until mid to late 1959. In her deposition she said he returned to the Kansas City-Lawrence-Tonganoxie area for a few nights, and she thought he might have spent a night or two at the farm at that time. At trial she said he spent a month with her. In neither version was there any explanation as to what she might have done with Barker, who was still living on the farm with her and continued to do so until the spring of 1960.

According to plaintiff, Fugett again went overseas, to France, Korea or Japan, but by great good fortune returned to Tonganoxie in December, 1960, and stayed on into January, 1961. This, of course, was just the time that Montgomery Ward was suing her (as 'Willa Beard, also known as Mrs. William H. Barker, a/k/a Mrs. Wm. H. Barker.') It was also the time when she was executing the two deeds to her mother as 'Willa Beard.'

After this stay, she said, Fugett again went overseas, and their contacts were only intermittent until 1966, when they parted for good.

The defendant produced three neighbors, the undersheriff, and the scrivener of the two deeds to plaintiff's mother, each of whom knew plaintiff only as 'Willa Beard.' None had ever heard of a George Fugett. A longtime employee of the telephone company testified that prior to 1962 service at plaintiff's farm was under the name 'Willa Beard.' In 1962, the listing was changed to 'Mrs. Wm. H. Barker.' The 1962 Tonganoxie telephone directory showing that listing was admitted into evidence. (Barker, it may be...