Fredenhagen v. Nichols & Shepard Co.

• Decision Date: 11 November 1916
• Docket Number: 20393[1]
• Citation: 160 P. 997,99 Kan. 113
• Parties: FREDENHAGEN ET AL. v. NICHOLS & SHEPARD CO. ET AL.
• Court: Kansas Supreme Court

160 P. 997

99 Kan. 113

FREDENHAGEN ET AL. v. NICHOLS & SHEPARD CO. ET AL.

No. 20393^[1]

Supreme Court of Kansas

November 11, 1916

Syllabus

A homestead is not abandoned by its owner where he, intending to return, leaves with his family and moves to a city in another county to educate his children, though later he sells the homestead and never returns.

The findings of the triers of fact are conclusive where different conclusions can reasonably be reached from the evidence although the evidence is not conflicting.

Appeal from District Court, Linn County.

Action by E. A. Fredenhagen and another against the Nichols &amp Shepard Company and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

W. J. Pirtle and M. B. Nicholson, both of Council Grove, and C. E. Freeman, of Topeka, for appellants.

T. F. Garver, of Topeka, W. H. McCamish, of Kansas City, and John A. Hall, of Pleasanton, for appellees.

OPINION

MARSHALL, J.

The defendant, Nichols & Shepard Company, appeals from a judgment quieting the plaintiffs’ title to certain land in Linn county. This land was a farm, and was occupied by E. S. Proctor and his family as a homestead for a long time prior to the 1st day of February, 1912. About that time he and his family left the farm and moved to Kansas City. In April following, Proctor and his wife conveyed the farm to the plaintiffs. In October, 1895, the defendant, Nichols & Shepard Company, obtained a judgment against E. S. Proctor in the district court of Linn county for the sum of $1,095.36, with interest, which judgment has been kept alive by executions. In the present action the plaintiffs sought to quiet their title to the land as against that judgment.

1. Was the land the homestead of E. S. Proctor and his family at the time of its sale to the plaintiffs? The cause was tried by the court without a jury, and the court found that the plaintiffs were the owners in fee simple and in the actual possession of the real property, that the judgment of Nichols & Shepard Company was not a lien upon the land, and that none of the defendants had any interest, right, title, estate, or lien in or upon the real property or any part thereof. Nichols & Shepard Company makes a strong argument to show that the land was not exempt from the lien of the judgment at the time of the sale to the plaintiffs. The argument is one of fact to be established by the evidence. That fact was determined by the trial court, and judgment was rendered.

The evidence to establish that the farm was the homestead of E S. Proctor and his family at the time of the sale to the plaintiffs, was principally that of Proctor himself, who testified, in substance, that when he left the farm he expected and intended to return to, and reside upon it; that he considered the farm the permanent home of himself and his family; that he had no intention whatever of abandoning it as his homestead; that he did not change his intention in any way until he conveyed the...