Kroenert v. Mead
| Citation | 59 Kan. 665,54 P. 684 |
| Decision Date | 08 October 1898 |
| Docket Number | 10824 |
| Parties | JOHN KROENERT et al. v. C. MEAD et al |
| Court | Kansas Supreme Court |
Decided July, 1898.
Error from Cowley District Court. A. M. Jackson, Judge.
Judgment affirmed.
C. T Atkinson, for plaintiffs in error.
J. Mack Love, for defendants in error.
This action was brought by John Kroenert and wife against the sheriff of Cowley County and certain judgment creditors of the plaintiff to recover certain tools and machinery which had been seized by the sheriff under executions in favor of the other defendants, and which had been used by the plaintiff in the operation of a canning factory and are claimed as exempt property. The answer of Mead and Upton alleges that the judgment on which their execution was issued was for rent of a building occupied by the plaintiff, John Kroenert, under a written lease from them, by the terms of which he expressly waived the benefit of the exemption laws of Kansas to secure the payment of the rent.
To this the plaintiffs replied that at the time of the execution of the written lease mentioned in the answer of Mead and Upton, Kroenert was a married man and a resident of the State of Kansas; that the property described in the plaintiffs' petition was exempt; that the lease was not signed by his wife; that her consent had never been given thereto, and that therefore Mead and Upton acquired no lien for their rent. To this reply the plaintiffs demurred, and the demurrer was sustained. Section 5, chapter 121, of the General Statutes of 1897, known as the Landlords and Tenants Act, provides:
"A tenant may waive, in writing, the benefit of the exemption laws of this State for all debts contracted for rent."
This section has been recognized as valid by this court. Hoisington v. Huff, 24 Kan. 379. But it is contended that section 3 of chapter 176 of the Laws of 1889 (§ 3, ch. 120, Gen. Stat. 1897), in effect repeals the section above quoted. It reads:
"It shall be unlawful for either husband or wife (where that relation exists) to create any lien, by chattel mortgage or otherwise, upon any personal property owned by either or both of them and now exempt by law to resident heads of families from seizure and sale upon any attachment, execution or other process issued from any court in this State, without the joint consent of both husband and wife; and from and after the time when this act shall take effect, no such mortgage of personal property shall be valid unless executed by both husband and wife."
The title to this act is--"An act to prohibit the mortgaging of exempt personal property without the joint consent of husband and wife."
In the brief of counsel for plaintiff in error it is assumed that a waiver of exemption operates to create a lien. The catch line above this section, as printed in the General Statutes of 1897 (§ 9, ch. 118), is misleading. The act of 1889 has no reference to waiver of exemptions. The title of the act mentions only the...
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Phillips v. Phillips
...288 P. 566; Sharp v. Sharp, 154 Kan. 175, 176, 117 P.2d 561; Davis v. Davis, 145 Kan. 282, 287, 65 P.2d 562. Appellant cites Kroenert v. Mead, 59 Kan. 665, 54 P. 684; Engels v. Amrine, 155 Kan. 385, 125 P.2d Hudspeth v. McDonald, 10 Cir., 120 F.2d 962; Amrine v. Tines, 10 Cir., 131 F.2d 827......
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Iowa Mut. Ins. Co. v. Parr
...was recognized by the trial court. Clearly, none of the first three exceptions applies, and as to the fourth it was said in Kroenert v. Mead, 59 Kan. 665, 54 P. 684: '* * * A waiver of exemption creates no lien on any property. Until seized in execution, a party who has waived the benefit o......
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Beach v. Fireovid
...as security or which give a lien for that purpose; and not to absolute sales. ( Holman v. Gillette, 24 Mich. 414. See, also, Kroenert v. Mead, 59 Kan. 665, 54 P. 684.) plaintiff did not give the defendant a lien upon the property, in the conversation referred to above, but turned it over to......
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West v. Grove
...have any rights therein, and therefore the very necessary element of joint consent was lacking. And another phase may be noted. In Kroenert v. Mead, supra, it was "A waiver of exemption creates no lien on any property. Until seized in execution, a party who has waived the benefit of the exe......