Kelly v. Sparks

• Decision Date: 26 January 1893
• Citation: 54 F. 70
• Parties: KELLY v. SPARKS et ux.
• Court: U.S. District Court — District of Kansas

54 F. 70

KELLY v. SPARKS et ux.

United States Circuit Court, D. Kansas.

January 26, 1893

David Overmeyer and J. S. Brown, for complainant.

Hurd &amp Dunlap and E. Sample, for defendants.

FOSTER District Judge.

This is a proceeding in the nature of a creditors' bill to subject real estate occupied by defendants as a homestead to the payment of a judgment recovered by complainant, in the district court of Kingman county at the May term, 1887, for $23,557, a transcript of which was subsequently filed in Barbour county, where said land is situated. It is alleged in the bill that said Richard M. Sparks is now, and was at the time said debt was contracted and said real estate purchased insolvent, and largely indebted to various parties; and that between the months of November, 1885, and May, 1886, said defendant Richard M. Sparks sold and disposed of a large amount of his property, real and personal, which was subject to the payment of his debts, with the purpose and intent to hinder delay, and defraud this complainant and his other creditors; and that said Sparks, with the said fraudulent intent, and to keep the proceeds of said sale from being subjected to the payment of his just debts, did about April 1886, with said proceeds purchase the land in controversy 160 acres, and did expend large sums of money, to wit, $5,000, in erecting buildings and making other improvements on said land, and now occupies and claims the same as his homestead; that said land was so purchased and improvements made by said defendant with the intent and purpose of defrauding his creditors by covering up and concealing his money and property under a homestead claim, and thereby placing it beyond the reach of his creditors with the fraudulent intent aforesaid, etc., and praying that said land may be ordered sold, and the proceeds subjected to the payment of the complainant's judgment. For answer to said bill, defendants admit the complainant's debt, and that defendant R. M. Sparks is insolvent, but deny he was insolvent when said debt was contracted, and deny that he disposed of his property with intent to hinder, delay, or defraud his creditors, or that he purchased said land and made the improvements thereon with such intent, but admit that he purchased said land, and improved the same, and now occupies and claims the same as a homestead, and aver that it is exempt from the payment of complainant's debt, etc. The constitution of the state of Kansas contains the following provision:

'A homestead to the extent of 160 acres of farming land, or one acre within the limits of an incorporated town or city, occupied as the residence by the family of the owner, together with all the improvements on the same, shall be exempt from forced sale under any process of law,' etc.

It will be observed there is no limit to the value of the improvements which may be placed upon the homestead by the debtor. The testimony in this case shows the land and the improvements to be worth about $7,000; that there is a mortgage on the same for about $1,500; that defendant's family consists of a wife and several children, and the family are now occupying the premises as a homestead. The complainant's debt had its origin in Lafayette county Mo., where both of said parties formerly resided. Complainant at various times during the years 1882 to 1885 signed as surety for defendant several promissory notes to banks and individuals at Lexington, Mo., which notes complainant was afterwards compelled to pay. The proceeds of these notes were used by defendant R. M. Sparks in dealing in land and live stock in Missouri, Colorado, and Kansas. About the years 1882 and 1883 said defendant came to Kansas, and purchased a large amount of land in Barbour county and stocked it with cattle and sheep, and carried on the business of buying, feeding, and selling live stock until the fall of 1885, when he failed, and became insolvent. About that time he sold his ranch and all his stock, and used about $7,000 of the proceeds in purchasing and improving the place he now occupies as a homestead. The improvements cost about $4,000. At that time he knew he was insolvent, and in securing the homestead...