Mushrush v. Zarker

• Decision Date: 09 April 1892
• Citation: 29 P. 681,48 Kan. 382
• Parties: JACOB MUSHRUSH v. HENRY ZARKER et al
• Court: Kansas Supreme Court

29 P. 681

48 Kan. 382

JACOB MUSHRUSH v. HENRY ZARKER et al

Supreme Court of Kansas

April 9, 1892

Error from Shawnee District Court.

THE opinion states the facts. Judgment for defendant Zarker, and others, at the September term, 1889. The plaintiff, Mushrush brings the case here.

Judgment affirmed.

Eugene Wolfe and Hazen & Isenhart, for plaintiff in error.

Vance & Campbell, for defendants in error.

GREEN C. All the Justices concurring.

OPINION

GREEN C.:

Jacob Mushrush owned 162 1/2 acres of land in Menoken township, in Shawnee county, upon which he resided with his family until the fall of 1887. In November, 1885, he leased to J. D. Small one acre in the southeast corner of the farm, near the Menoken depot, for the term of four years, for the purpose of carrying on the business of buying, selling shipping and doing a general grain business. The lessee was to have the privilege of erecting cribs, scales and bins upon the leased ground. This lease was assigned to the Capital Elevator Company in 1888. Cribs, bins and scales were erected, and a general grain business was conducted on the leased premises. In the fall of 1887 the plaintiff in error removed his family to Lawrence, for the purpose of educating his children. He leased a portion of his farm to his brother-in-law for crop rent, but reserved some rooms in the house, in which he stored some household goods, and occupied with members of the family, as occasion required. He cultivated a portion of the farm himself, and worked upon the premises during the farming season. Henry Zarker obtained a judgment against Mushrush in July, 1888, upon which an execution was issued, directed to the sheriff of Shawnee county, which was levied upon a fraction less than two acres of land, including the leased ground, in the southeast corner of the premises. The plaintiff in error notified the sheriff that he claimed the whole tract as his homestead. He served another notice a short time before the sale that the land levied upon was a part of the 160 acres selected as his homestead from the 162 1/2 acres, and that the sheriff might levy his execution upon the remainder of the farm, consisting of a strip of land 73 links wide, containing 2 1/2 acres, on the northern boundary of the place, the meandering center of which was Soldier creek, which counsel for defendant in error are pleased to describe as "a strip almost entirely in the bed of that classic...