Linn v. Ziegler

• Decision Date: 06 February 1904
• Docket Number: 13,495
• Citation: 68 Kan. 528,75 P. 489
• Parties: JAMES LOGAN LINN et al. v. LEWIS W. ZIEGLER et al
• Court: Kansas Supreme Court

75 P. 489

68 Kan. 528

JAMES LOGAN LINN et al. v. LEWIS W. ZIEGLER et al

No. 13,495

Supreme Court of Kansas

February 6, 1904

Decided January, 1904.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUSUS BY THE COURT.

1. HOMESTEAD AND EXEMPTIONS--Estoppel. One who pleads that a tract of land was occupied at a certain time by himself and family as their homestead, such claim having reference to the complete title to the land and not merely to an undivided fractional interest therein, is thereby estopped to assert that such tract was at the same time the homestead of another.

2. LIMITATION OF ACTIONS--Foreclosure after Death of Mortgagor--Demand against Estate. A cause of action for the foreclosure of a mortgage does not accrue upon the death of the mortgagor and the allowance by the probate court of the note secured by the mortgage as a demand against the estate, without regard to the maturity of the mortgage debt and such allowance does not set the statute of limitations in operation against such action.

S. B. Isenhart, and W. F. Schoch, for plaintiffs in error.

Bergen & Dana, for defendants in error.

MASON J. All the Justices concurring.

OPINION

MASON, J.:

Lewis W. Ziegler. brought an action against James L. Linn and wife to foreclose a real-estate mortgage executed by Harriett Matney, and recovered judgment, which defendants now ask this court to reverse. The trial court made detailed findings of fact, some of which plaintiffs in error claim are not supported by evidence. An examination of the record has resulted in the conclusion that this complaint is not well founded, and the findings will be accepted as conclusive without further discussion, except in connection with one to the effect that at the date of the mortgage the property covered was not the mortgagor's homestead. This, on account of its importance in the determination of the case, and because it of necessity partakes somewhat of the nature of a conclusion of law, will be considered together with the other legal questions involved.

The first objection urged against the mortgage, which was made by a married woman without her husband's consent, is that it is void because it covered a part of the homestead. The mortgaged tract was the south half of a quarter-section of land, an undivided seven-eighths of which was owned by Harriett Matney, the mortgagor, the remaining undivided one-eighth being owned by James L. Linn, her son. There was located on the north half of the quarter-section, the family dwelling-house of Mrs. Matney and her husband, with the orchard, barns and other buildings pertaining thereto. Linn and his wife occupied the south half as their homestead. Linn farmed parts of both tracts, paying rent therefor to Mrs. Matney. The question is not whether these considerations compel the conclusion that the south half was not a part of Mrs. Matney's homestead, but whether they compel the conclusion that it was. In Hay v. Whitney, 59 Kan. 771, 51 P. 896, it was said: "There cannot be two homesteads in a single tract of land belonging to different persons at the same time." But this language was used where one of the two persons claiming a homestead right held under the other, his estate being carved out of the other's.

In Kansas the owner of an undivided interest in real estate may assert a homestead right to the extent of that interest, in no wise, however, to the prejudice of his cotenant. ( Tarrant v. Swain, 15 Kan. 146.) And no reason is apparent why the cotenant may not likewise enjoy the same protection as to his interest. (Meguiar v. Burr, 81 Ky. 32.) But in order for this south eighty acres to have been a part of the Matney homestead, it must have been actually or constructively occupied as a part of the home place and regarded as such. It would not of necessity become a part of the homestead by the mere fact of contiguity, regardless of the use made of it, or the attitude of the owners towards it. "In order that anything shall be a part of the homestead, it must not only be connected therewith as one piece of land is connected with another to which it adjoins, but it must also be used in connection therewith and as a part thereof. In legal phrase, it must be appurtenant thereto." (Ashton v. Ingle, 20 Kan. 670, 682, 27 Am. Rep. 197.) "The fact that it is adjacent, and that the ground covered by it, together with the farm, does not exceed 160 acres, does not change the character of the use." (Mouriquand v. Hart, 22 Kan. 594, 597, 31 Am. Rep. 200.)

It is true that upon the facts so far stated herein there might appear to be a sufficient common use of the property to warrant a claim of homestead in the entire tract of 160 acres. Granting that the mere physical conditions are not inconsistent with such a claim, the important inquiry remains as to how the parties in interest regarded the matter. The law does not require that every part of a homestead shall be in actual use by the owner, but it does require that the whole tract must be devoted to the purposes of a homestead and not to any other purpose inconsistent therewith. (Morrissey v. Donohue, 32 Kan. 646, 5 P. 27.)

Here the defendants pleaded in their answer, which was a part of the pleadings upon which the case was tried, that from a time prior to the making of the mortgage they continuously occupied the mortgaged property as their homestead. It is especially to be noted that this allegation is an assertion of a homestead interest, not merely to the extent of the undivided one-eighth interest of James L. Linn in the quarter-section, but to the extent of the entire title to...