Ingels v. Ingels

• Decision Date: 11 February 1893
• Citation: 32 P. 387,50 Kan. 755
• Parties: MILLIARD F. INGELS et al. v. LEMUEL INGELS
• Court: Kansas Supreme Court

32 P. 387

50 Kan. 755

MILLIARD F. INGELS et al. v. LEMUEL INGELS

Supreme Court of Kansas

February 11, 1893

Decided January, 1893.

Error from Atchison District Court.

THE opinion herein, filed February 11, 1893, contains a sufficient statement of the nature of the action and the facts. June 22, 1889, judgment for plaintiff, Lemuel Ingels against Milliard F. Ingels and another. The defendants bring the case to this court.

Judgment affirmed.

W. D Gilbert, for plaintiffs in error:

In the case at bar, the time between the purchase and the occupancy of the house was between two and three years, the homestead claimant being during all that time engaged in the honest and earnest endeavor to obtain the means to complete the building and occupy the premises as a home. "If anything was lacking to make the lot a homestead, it was because the poverty of plaintiffs in error had precluded their advancing the improvements as rapidly as they desired." They were proceeding as fast as they were able to improve it as their homestead, and build a dwelling, for which purpose they had a part of the material upon the premises, when the contract to bore for coal seemed to present a means by which they could hasten the time when they would have their home ready to move into, and temporarily they left it in order to get the money to complete it, expecting and intending to return to it, and did return and occupy it.

In Reske v. Reske, 51 Mich. 541, actual occupancy within three years was held to be within a reasonable time, when the claimant of the homestead was putting forth his efforts and labors to obtain the means to build the house to occupy the homestead. The case at bar is stronger than the Michigan case, supra, inasmuch as in the case at bar the money invested in the lots was the proceeds of the sale of the homestead which he before that time had owned. The law is well settled, that the proceeds of the sale of the homestead while held with the intention of investing in another homestead, and the new homestead after the investment is made, are alike out of the reach of the creditor--are property toward which the creditor need never turn his eye. See Scofield v. Hopkins, 61 Wis. 370; Binzel v. Grogan, 67 id. 147; Bradshaw v. Hurst, 57 Iowa 745; Morris v. Ward, 5 Kan. 247; Edwards v. Fry, 9 id. 417; Monroe v. May, 9 id 466; Mitchell v. Milhoan, 11 id. 617; Gilworth v. Cody, 21 id. 702.

B. F. Hudson, for defendant in error:

The court below held that the property was not the homestead of defendants in error when the levy was made. The said M. F. Ingels purchased the property in March, 1887, but never erected any buildings thereon until in September, 1889, two or three days before the sale, when he built thereon a board shanty, costing not more than $ 10 or $ 15, so that he might claim the property as a homestead. He does not claim to have occupied it as a homestead until after the levy, which is too late to defeat the lien obtained by the levy. Bullene v. Hiatt, 12 Kan. 98.

There is no evidence that he bought it "with the intent of present, not simply of future, occupancy." Swenson v. Kiehl, 21 Kan. 534.

The plaintiffs in error assume that the case of Reske v. Reske, 51 Mich. 541, is conclusive. The facts in that case and the one at bar are entirely different. In that, the owner fenced the lot, built a barn and shed, dug a well, kept his horses on the lot, also his hogs and poultry, and carried on business on the lot from the first, at which his wife assisted, and each day, as he would make a little money, he would add to improvements, and he lived across the way from the lot. The defendants in error assume to give the language of the Michigan decision, but omit some portions to which we attach importance, and to which we invite the attention of the court.

"A homestead . . . occupied as a residence by the family, etc., is the language of both constitution and statute." Edwards v. Fry, 9 Kan. 425.

The plaintiffs in error also cite Gilworth v. Cody, 21 Kan. 702, as supporting their views, but it is no more applicable than Reske v. Reske, supra.

ALLEN, J. All the Justices concurring.

OPINION

ALLEN, J.:

On the 22d day of June, 1889, defendant in error obtained a judgment in the district court of Atchison county, Kansas, against T. J. Ingels and M. F. Ingels, for the sum of $ 906.90 and costs of suit. On the 9th day of August, 1889, execution was issued on said judgment to the sheriff of Atchison county. On the 19th of August, 1889, said sheriff levied the same on lot 11, and the west 40 feet of lot 12, block 11, in that part of the city of Atchison commonly known as "West Atchison." The sheriff duly advertised this property for sale, and on the 26th day of September, 1889, sold the same to the plaintiff below for the sum of $ 157. Motions were thereafter filed, both to confirm and set aside said sale. These motions were heard at the same time. The motion to set aside the sale was overruled, and the motion to confirm was sustained. The defendants below excepted to the ruling of the court on these motions, and bring the case here for review.

Two points are urged by counsel for the plaintiffs in error. One is, that the appraisement is defective, because the appraisement fails to state that the appraisers made an estimate of the real value of the property. The appraisement does state that the appraisers, being first duly sworn impartially to appraise the said property upon actual view, had truly and impartially appraised said property, and that the particular property in controversy was appraised at $ 150. We think this a substantial compliance with the statute. It is not necessary that the precise language of the statute be used in the report of the appraisers. We think that the appraisement in this case fairly shows that the property was appraised at what the appraisers deemed its real value. This is a substantial compliance with the requirements of the statute.

The principal question presented for our consideration is, whether or not this property was a homestead, and therefore exempt from levy and sale. The facts with reference to the matter, as appears from the record, are as follows: The plaintiffs in error formerly owned and occupied a homestead in west Atchison, which they sold in the year 1887, expecting and intending at the time to reinvest the proceeds in another homestead. Soon thereafter they invested a part of the proceeds of this sale in the property in controversy, for the purpose and with the intention of making it their permanent homestead. At the time of the purchase, there was no house or other building thereon, and the same was not inclosed. They inclosed the lots with a fence, and, as fast as they were able, proceeded to and had hauled on said lots materials, stone, lumber, etc., with which to build a dwelling house and building to occupy as a homestead. Milliard F. Ingels then took a contract at Valley Falls to bore for coal, and temporarily moved to Valley Falls to be near his work, and intending to return to his homestead, complete his dwelling house, and occupy the same as his permanent homestead. While he was still engaged on his contract at Valley Falls, and before he had completed the same, on the 19th day of August, 1889, the sheriff levied said execution on said property, and sold the same as before stated. The plaintiffs in error have no other homestead, and no other real estate of which to make a homestead. After the levy, the defendants below built a house on said lots, which they occupied at the time of the sale. The defendants never occupied the premises in question, from the time they were purchased by the defendants, in March, 1887, till after the making of the levy thereon; and at the time said judgment was rendered, and at the time the levy was made, the said premises were vacant and unoccupied, excepting that they were inclosed by an old fence. The facts in this case are to be gathered from the affidavit made by both plaintiffs in error, and also from an agreed statement of the facts made by both parties and included in the record. The statements with reference to the placing of building materials on the lots are contained in the affidavit. From the agreed statement, it appears that the defendants never occupied the premises in question, from the time they purchased them to the time of the levy, and that at the time the judgment was rendered and at the time of the levy the premises were vacant and unoccupied, except that they were inclosed by an old fence. We can only harmonize the facts gathered from the affidavit with those contained in the agreed statement of facts by concluding that whatever building materials had been placed on the lots were removed therefrom before the levy was made. It clearly appears from the whole record that the premises were never in fact occupied by the defendants as a homestead, and also that, at the time the judgment was rendered and the levy made, the lots were vacant and unoccupied.

The question is now presented for our consideration as to whether the purchase of this property for a homestead, and the intention in the minds of these parties to make it a homestead in the future, is sufficient to supply the requirement of occupancy contained in the constitution. Section 9, of article 15 of the constitution reads as follows:

"SEC 9. A homestead to the extent of 160 acres of farming land, 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 all the improvements on the same, shall be exempted from forced sale, under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale...