Morrissey v. Donohoe

• Decision Date: 28 November 1884
• Citation: 5 P. 27,32 Kan. 646
• Parties: THOMAS MORRISSEY v. JAMES DONOHUE
• Court: Kansas Supreme Court

5 P. 27

32 Kan. 646

THOMAS MORRISSEY v. JAMES DONOHUE

Supreme Court of Kansas

November 28, 1884

Error from Leavenworth District Court.

MAY 5 1883, the plaintiff Morrissey moved the court to confirm a sheriff's sale of the north 49 feet of lot 1, in block 9 of Clark & Rees's addition to the city of Leavenworth, and at the same time the defendant Donohue moved the court to set aside the sale on the ground that the property sold was a part of his homestead, and therefore exempt from execution. The court heard the motions together upon affidavits and oral evidence, and overruled plaintiff's motion and sustained the defendant's motion. These rulings the plaintiff brings here for review. The facts are stated in the opinion.

Judgment affirmed.

C. F W. Dassler, for plaintiff in error.

Lucien Baker, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The only question involved in this case is, whether the north 49 feet of lot 1, in block 9, of Clark & Rees's addition to the city of Leavenworth, is, and has been since September 16, 1875, a part of the homestead of the defendant, James Donohue? The facts of the case appear to be substantially as follows: In 1875, and prior thereto, and for some time afterward, Donohue owned all of lots 1 and 2 in the block aforesaid, both lots being within one inclosure and constituting a single tract of land 90 feet wide by 140 feet long, each lot being 45 feet wide east and west, and 140 feet long north and south, and lot 1 being on the east side of the other lot. Donohue was a married man, with a wife and children, who resided upon these lots, and occupied the same as their homestead. Donohue's dwelling was situated on the south ends of these lots. He had also built a small one-story house 49 feet from the north end of the lots and extending across lot 1 and upon the east side of lot 2 about two feet, which house he rented to tenants. On September 16, 1875, a judgment was rendered in favor of Morrissey and against Donohue, for $ 397.77 and costs; and the judgment not being paid, an execution was issued thereon, and levied upon the small tenement house, with the ground upon which it stood, and the same was sold at sheriff's sale on June 8, 1877, and the sale was confirmed, it being held that such property was not exempt from execution. ( Ashton v. Ingle, 20 Kan. 670.) Afterward, and on March 14, 1883, another execution was issued, which was levied upon the north 49 feet of said lot 1, and the same was sold on April 23, 1883, at sheriff's sale. On May 5, 1883, the plaintiff moved the court to confirm such sale, and at the same time the defendant moved the court to set aside the sale, claiming that the property sold was a part of his homestead, and therefore exempt from execution. The court below heard the motions together upon affidavits and oral evidence, and overruled the plaintiff's motion, and sustained the defendant's motion, to which rulings the plaintiff excepted; and he now brings the case to this court, and asks for a reversal of such rulings, and of the decision of the district court.

We think the decision of the district court is correct. The property levied upon was a part of the same tract of land which was occupied by the defendant as his homestead. It was a part of his inclosure. No fence or...