King v. Millhaubt

• Citation: 95 Kan. 390,148 P. 752
• Decision Date: 08 May 1915
• Docket Number: 19,297
• Parties: CHARLES KING, Appellant, v. RICHARD WILSON and JOHN F. MILLHAUBT, as Sheriff, etc., Appellees
• Court: United States State Supreme Court of Kansas

148 P. 752

95 Kan. 390

CHARLES KING, Appellant, v. RICHARD WILSON and JOHN F. MILLHAUBT, as Sheriff, etc., Appellees

No. 19,297

Supreme Court of Kansas

May 8, 1915

Decided. January, 1915.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment reversed and granted.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTION--Sale of Homestead--Exemption--Sufficient Petition. In an action brought by a party to enjoin the sale of his homestead under an order of sale, it is not necessary for him to allege that the judgment was not rendered for any one of the class of claims against which there is no homestead exemption.

2. JUDGEMENT--Lien for Improvements on Homestead--Not Binding on Husband Not Party to the Action. A judgment, purporting to be on a claim for improvements, against the owner of a homestead, is not binding on the husband or wife of such owner, so far as the homestead exemption is concerned, where such husband or wife was not a party to the action in which the judgment was rendered.

3. INJUNCTION--Restraining Sale of Homestead--Necessary Proof. In such an action as is mentioned in section one of this syllabus, it is necessary for the defendant to prove that the claim on which judgment was rendered was one against which there is no homestead exemption.

J. Graham Campbell, and Ray Campbell, both of Wichita, for the appellant.

O. H. Bentley, and J. C. Bentley, both of Wichita, for the appellees.

OPINION

MARSHALL, J.

This is an action to enjoin the sheriff of Sedgwick county and defendant Richard Wilson from selling a homestead, under a judgment rendered in the district court of that county in an action in which the defendant herein, Richard Wilson, was plaintiff, and Sarah A. King, wife of this plaintiff Charles King, was defendant. Judgment was rendered in favor of the defendants. The plaintiff appeals.

The petition in this case alleges that the plaintiff and Sarah A. King are husband and wife, and have been for years occupying the premises in controversy as a homestead; that in October, 1911, judgment was rendered in the district court of Sedgwick county, Kansas, in favor of defendant in this action, Richard Wilson, and against Sarah A. King, the wife of this plaintiff, for $ 1038.41, decreeing his claim to be an equitable mortgage upon the real property in controversy herein and awarding execution to collect the judgment, and if the judgment can not be collected without sale, awarding an order of sale against the homestead; that an order of sale was issued under that judgment; that the defendants threaten to sell this property under that order of sale; and that this plaintiff was not a party to that suit. The defendants filed a demurrer to this petition, which was sustained by the court. The plaintiff then amended his petition by adding the following:

"That neither said order of sale heretofore issued as aforesaid, nor the judgment upon which the same was based, is on account of any lien for taxes against said premises, nor for the payment of any obligation contracted for the purchase of said premises, nor for the erection of any improvements upon said premises."

The defendants again interposed a demurrer to the petition as amended, which was overruled. They then answered, setting up the petition of Richard Wilson in the former action against Sarah A. King. In that action the plaintiff therein, Richard Wilson, alleged that Sarah A. King was indebted to him upon a promissory note for $ 805, which recited that this sum was loaned by him to Sarah A. King to be used in the building of a house and improvements on the property in controversy, and alleged that the money advanced by Wilson to her was used by her for the purpose of building the house on the real property mentioned, and that it was understood that Sarah A. King would execute a mortgage on the property to Richard Wilson to secure the payment of the money advanced. Trial was had, and judgment was rendered in favor of the plaintiff, Wilson, for $ 1038.41, decreeing the same a specific lien and claim and equitable mortgage upon the real property, prior to and superior to all other liens or claims from the date of filing the petition in that action.

All of the allegations of plaintiff's amended petition were either admitted by the pleadings or upon the trial, or were proved without contradiction, except the allegation "That neither said order of sale heretofore issued as aforesaid, nor the judgment upon which the same was based, is . . . for the payment of any obligation contracted for the purchase of said premises, nor for the erection of any improvements upon said premises."

The evidence on behalf of the defendants in this action consists of the files in the former action. The plaintiff, in rebuttal, introduced what is called a "final statement of court," which appears to be remarks made by the court at the time of rendering the judgment in the former action. The court, in the present action, would not allow the plaintiff to prove that the order of sale under which the sheriff was undertaking to sell the real estate, nor the judgment upon which the same was based, was not for the payment of any obligation contracted for the purchase of the premises, nor for the erection of any improvements thereon, and sustained the objections of the defendants to all such evidence. This excluded evidence was not produced on the motion for a new trial, and is not set out in the abstract.

The matters complained of are: (1) Sustaining the demurrer to plaintiff's first petition. (2) That the former judgment does not bind the plaintiff in this action. (3) Excluding evidence to prove that the former claim and judgment was not for improvements, and that judgment should have been rendered for the plaintiff on the evidence.

(1) When the plaintiff filed the amended petition, after the court had sustained a demurrer to the petition as first filed, whatever error there may have been in the order sustaining such demurrer became immaterial. (Moore v. Wade, 8 Kan. 380, 385; Cannon v. Kreipe, 14 Kan. 324; Briggs v. Tye, 16 Kan. 285; U. P. Rly. Co. v. Estes, 37 Kan. 229, 231, 15 P. 157.) This matter would not now be considered, but for the fact that the plaintiff argues that upon the evidence introduced judgment should have been for him. Was it necessary for the plaintiff to allege that the former judgment was not for an obligation contracted for the purchase of the premises, or for the erection of any improvements thereon? In suits for the protection of the homestead right it is not necessary to allege that the debt sought to be enforced against the property is not embraced within any of the exceptions. ( Holcomb v. Hood, 8 Ky. Law Rep. 255, 1 S.W. 401; Starnes v. Webb, 11 Ky. L. Rep. 36, 11 S.W. 508; Morehead v. Morehead, 16 Ky. L. Rep. 34, 25 S.W. 750; Shirley v. Russell, 23 Ky. L. Rep. 33, 62 S.W. 483; Nichols v. Sennitt, &c., 78 Ky. 630; Snapp, &c., v. Snapp, &c., 87 Ky. 554, 9 S.W. 705; Bach v. May, 163 Ill. 547, 551, 45 N.E. 248, and cases there cited; Huening v. Buckley, 87 Ill.App. 648; 21 Cyc. 636, 637; Thompson on Homesteads and Exemptions, §§ 701, 704.)

If this were a criminal pleading it would not be necessary to set out these exceptions. (The State v. Thompson, 2 Kan. 432; City of Kansas City v. Garnier, 57 Kan. 412, 46 P. 707; The State v. Thurman, 65 Kan. 90, 68 P. 1081; The State v. Buis, 83 Kan. 273, 111 P. 189.)

(2) Does the judgment in favor of Richard Wilson and against Sarah A. King bind the plaintiff in this action? The property in controversy was the homestead of the plaintiff and his wife, Sarah A. King. The constitutional provision (Const., art. 15, § 9) and the statute concerning homesteads (Gen. Stat. 1909, § 3646) both read:

"A homestead to the extent of one hundred and sixty 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 for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife."

It should be noted that "no property shall be exempt . . . for the payment of obligations contracted . . . for the erection of improvements thereon." In Nichols v. Overacker, 16 Kan. 54, this court said:

"There is no homestead-exemption law as against obligations contracted for the purchase-money. As to such obligations, the rule is just the same as if no exemption-law had ever been adopted. And land held as a homestead is, with respect to such obligations, governed by just the same rules as if it were not a homestead." (p. 58.)

The above is quoted in Tyler v. Johnson, 47 Kan. 410 412, 28 P. 198, and is the firmly fixed law of this state. (See, also, Hurd v....