Palmer Oil & Gas Co. v. Parish

• Decision Date: 06 January 1900
• Parties: PALMER OIL & GAS CO. v. PARISH.
• Court: Kansas Supreme Court

59 P. 640

61 Kan. 311

PALMER OIL & GAS CO.
v.
PARISH.

Supreme Court of Kansas

January 6, 1900

Syllabus

1. An owner of property occupied as a homestead, who has under consideration a change of residence, and who, with his wife, starts out in an effort to find a new home, but with the intention to return and continue to occupy the homestead if he cannot make a satisfactory exchange, and who leaves members of the family at the home, as well as household effects, stock, and other property, does not thereby forfeit his homestead right; nor will the property be devested of the homestead character until there is a permanent removal, with an intention not to return to the same.

2. Franklin Land Co. v. Wea Gas, Coal & Oil Co., 23 P. 630, 43 Kan. 518, followed.

Error from district court, Allen county; L. Stillwell, Judge.

Action by George W. Parish against the Palmer Oil & Gas Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Oscar Foust & Son, C. E. Benton, and A. H. Campbell, for plaintiff in error.

J. F. Thompson, for defendant in error.

OPINION

JOHNSTON, J.

This proceeding involves a question of homestead right. John W. Boatwright owned, and with his wife occupied as a homestead, a quarter section of land in Allen county. On April 5, 1894, Boatwright executed to George A. Bowlus & Co. a lease giving them the right to enter upon the land and operate for oil, gas, and minerals for a term of 10 years, and their rights under the lease were subsequently assigned to the Palmer Oil & Gas Company. The wife of Boatwright did not join in the execution of the lease, and has never consented that it should be made. In October, 1894, Boatwright and wife conveyed the land to Mary A. Parish, and she in turn conveyed it to George W. Parish, who shortly afterwards instituted this proceeding to declare the lease invalid, and to quiet his title as against those claiming under it. The controlling question in the case is whether Boatwright and wife occupied the land as a homestead at the time the lease was executed,-a question mainly of fact,-and it has been determined adversely to the claim of the company. The lease was executed when Boatwright was absent from the land, and while he was in Missouri, but it is claimed to have been a temporary absence, or at least that there was no abandonment of the homestead in Kansas. It appears that Boatwright and wife in January, 1894, went to Ft. Scott, where they remained for a number of weeks, and...