McCrie v. Company

• Decision Date: 01 November 1897
• Docket Number: 280
• Parties: ROBERT MCCRIE v. THE HIXON LUMBER COMPANY et al
• Court: Kansas Court of Appeals

51 P. 966

7 Kan.App. 39

ROBERT MCCRIE v. THE HIXON LUMBER COMPANY et al

No. 280

Court of Appeals of Kansas, Northern Department, Eastern Division

November 1, 1897

Opinion Filed January 27, 1898.

Error fro Atchison District Court; W. D. WEBB, judge. Modified.

THIS was an action to foreclose certain liens obtained under the mechanics' lien law. The plaintiff in error, and others who were defendants below, set up judgments against the property owners, and showed that the judgments were rendered before the contract for the house was made. The mechanics and material-men sought to have their liens declared prior to the judgment liens by showing that the real estate was the homestead of the owners. Judgment was rendered giving the mechanics and material-men liens prior to the judgment creditors, and ordering that the surplus, after paying them be turned over to the judgment creditors. The judgment creditor McCrie brings the case here.

Judgment modified.

J. T Allensworth, for plaintiff in error.

Chas J. Conlon, and J. F. Tufts, for defendants in error.

OPINION

MAHAN, P. J.:

The principal question in this case, going to the merits, and presented by counsel in their briefs and arguments, is whether the property involved in the suit was exempt to the principal defendants -- the Hudsons -- as a homestead.

The defendants in error contend that the court ought not to consider the merits of the case because the record is insufficient; that the case made is indefinite, incomplete, and does not purport to be the record or copies of records of anything upon which this court can base a review. Counsel are mistaken in this. The record contains the pleadings and the special findings of the jury, the findings of fact of the court, and the conclusions of law based thereon. It would have been an unnecessary expense to have brought to this court the evidence. The practice of limiting the case made to sufficient matter to present the questions involved ought to be encouraged rather than discouraged.

The first specification of error is that the court erred in omitting to instruct the jury as to what constituted a homestead. If the instructions were deficient in any respect it was the duty of counsel to ask the court to give further instructions. Had he done so, and had the court refused to submit the proper instruction to the jury upon the question proposed, there would have been something to base the contention upon. As it is, there is not.

The second specification of error is that the court erred in concluding that the mechanics' liens were prior to the judgment liens of the plaintiff in error, and in adjudging that the proceeds of the sale of the property involved, after the mechanics' liens were satisfied, should be distributed among the judgment creditors pro rata. This directly involves the question whether the land was a homestead or not, and also presents the question of the respective rights of the judgment lienors. The third specification of error is that the court erred in not adjudging the plaintiff in error to have a first lien upon the property. And the fourth is that the court erred in not sustaining the plaintiff's motion for a new trial.

These three involve the homestead question. If the land was exempt to the principal defendants as a homestead, the plaintiff has nothing to complain of as against the mechanics and material-men whose labor and lumber went into the improvements upon the property.

The findings show that the plaintiff in error obtained his judgment in 1890; that the principal defendants -- the Hudsons -- acquired their title to the property in controversy on the 22d day of February, 1892; that it was their intention at the time they took title to the property to make it their homestead; that during the months of March, April, May, and June, 1892, John H. Myers, one of the defendants, was engaged under a contract with them in constructing a dwelling-house upon the land; that the Hixon Company and the other lienors furnished material therefor and labor thereon as subcontractors; that the work was abandoned by reason of the fact that the Hudsons failed to make a payment to the contractor according to the terms of the contract; that at no time did the Hudsons or any of them ever reside upon the land; that during all of the time that the work was progressing they lived in rented property about a mile distant from the property in controversy; and that after the suspension of the work on the property they left Atchison and moved to the town of Alton, in Kansas, and have resided there ever since.

The action was tried at the March term, 1894. After adjudging the several amounts due to the lienors against the Hudsons, as well as against Myers, the contractor, the court held that those lienors should be first paid out of the proceeds of the property; and if there should be any residue after paying them, it should be distributed among the judgment creditors pro rata; that the Hudsons were not entitled to hold the proceeds of the sale against the judgment creditors after the mechanics' liens were satisfied. So it will be seen the court not only held, in effect, that as between the parties claiming liens for work and the material furnished in the construction of the house and the judgment lienors the property was exempt as a homestead of the Hudsons, because it could not have found that the liens of the mechanics and material-men were superior to the liens of the judgment creditors under any other theory; but it also held, as between the Hudsons and their judgment creditors that the property was not exempt; otherwise, the residue of the funds, after discharging the other liens, should have been paid to the Hudsons. Under the well-settled law of this state, the proceeds of a...