Pilcher v. Atchison

• Decision Date: 11 February 1888
• Citation: 38 Kan. 516,16 P. 945
• Court: Kansas Supreme Court
• Parties: LUCINDA PILCHER v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

16 P. 945

38 Kan. 516

LUCINDA PILCHER v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

Supreme Court of Kansas

February 11, 1888

Error from Johnson District Court.

EJECTMENT brought by Pilcher against the Railroad Company. A trial was had at the March Term, 1884, resulting in a judgment for defendant, which was reversed by this court. (34 Kan. 46.) Another trial was had, at the March Term, 1886, and judgment for costs rendered against plaintiff. The trial was by court Hon. S. B., judge pro tem., presiding. The court made the following special findings of fact:

"1. Both plaintiff and defendant claim title from Thomas Pilcher now deceased.

"2. In his lifetime the said Thomas Pilcher was the husband of this plaintiff.

"3. From the year 1868, up to the time of his death, in 1879 Thomas Pilcher and the plaintiff resided, as husband and wife, upon the quarter-section of land, a part of which constitutes the premises in controversy, with their family, and made it their home during all of this time; said quarter-section of land is not a part of any incorporated city.

"4. From the time of the death of her husband up to the present time, the plaintiff has continually resided and made her home upon said quarter-section, being the S. E. 1/4 of sec. 35, town 13, range 23, in Johnson county, Kansas.

"5. The plaintiff has a life estate in said quarter-section of land, with power of sale, which she received by the will of her late husband, Thomas Pilcher.

"6. In 1871 and 1872, the St. Louis, Lawrence & Denver R. R. Co. built a railroad across said premises, under some kind of an agreement with Thomas Pilcher, the then owner thereof; by due process of law the Pleasant Hill & De Soto Railroad Co. succeeded to the right of the St. Louis, Lawrence & Denver R. R. Co.

"7. The St. Louis, Lawrence & Denver Railroad Company built its road upon the land in controversy under contract for the right-of-way made with Thomas Pilcher in his lifetime, and without any notice from plaintiff of any objection upon her part. The terms and conditions of the contract the court cannot from the evidence find.

"8. The railroad over the premises in controversy was, when built, and for a number of years thereafter, used as a line of railroad running from Cedar Junction, Kansas, to Pleasant Hill, Mo., and as such was used in running regular trains between those points for a number of years; but at present the premises in controversy are not used for running trains over, except as a switch track to transfer cars from the Kansas City, Fort Scott & Gulf R. R. to the Southern Kansas R. R., and the said line of railroad from Olathe to Cedar Junction has been abandoned and is not used for the running of trains thereon at all.

"9. Plaintiff and defendant lived on the premises during the building of the St. Louis, Lawrence & Denver Railroad, in full view of the same.

"10. Plaintiff has never had any conversation, at any time, with anyone representing the railroad company in reference to the passage of the railroad over their land; but she did frequently while the railroad was building, and since, protest against it to members of her family, but she never notified any of the agents or employes or contractors of the railroad company while the road was being constructed that she objected to the construction of the road; and she was living upon said quarter of land about one hundred yards from the nearest point of the line of railroad during all the time the railroad was in process of construction through said quarter-section, and in going from her residence to the city of Olathe she did pass over the line of said road in process of construction.

"11. During the lifetime of Thomas Pilcher, he and his wife, this plaintiff, joined in a warranty deed to their son, R. A. A. Pilcher, conveying to him a portion of said quarter-section of land, and in said deed referred to the said company's right-of-way as a boundary; and also another deed conveying to their son, J. R. F. Pilcher, another portion of said quarter-section of land, over which said road runs, and referring to said railroad as a boundary."

Upon the foregoing findings of fact, the court found as a conclusion of law that the plaintiff Pilcher is not entitled to recover in this action. New trial denied. Judgment for costs, against the plaintiff. To each and all of the foregoing findings of fact, the conclusion of law, and the rendition of the judgment, the plaintiff duly excepted, and has brought the case here.

Judgment reversed and remanded.

Parker & Seaton, for plaintiff in error.

Geo. R. Peck, A. A. Hurd, and Robert Dunlap, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

The plaintiff in error has continuously resided upon the land which is the subject-matter of this controversy, since the year 1868. Her husband, in whom the title vested, died in 1879, leaving by will the plaintiff in error, at least a life estate in this land. She has claimed and does claim it as her homestead, and further claims that by force of her homestead rights the defendant railway company never acquired any easement therein, and she brought her action in ejectment to recover that portion occupied and used by the railway company. Counsel for defendant in error contend that, as the plaintiff in error elected to take under the will, her homestead right is waived by that election; and they cite Watson v. Christian, 12 Bush 524, in support of their view. They go still further, and deduce from that decision that as she claims under the will she ought not to be permitted to set up a claim of homestead under the statute, but she should be bound by everything her husband did, to the same extent that he would be bound, because she is privy in estate by virtue of the will. The Kentucky case may have been rightfully decided under the homestead provisions of that state, but this case cannot be accepted as an exposition of the law of this state. We make no criticism upon it; all we say is, that it is not to be taken as an interpretation of the operation of our constitutional provisions and statutory enactments upon the subject of the homestead. Thomas Pilcher had the legal title to the land in his lifetime, and it was occupied by him and his family as a residence. It was his homestead, and was unquestionably the homestead of his wife and children. When he died and ceased to be the head of the family, his wife, this plaintiff in error, became the head of the family, and she was entitled to be so considered. The land continued to be a homestead after his death to the same extent that it was before, and so continues until after all the children arrive at the age of maturity, and until it shall have been partitioned among the heirs. It cannot be made subject to the payment of the debts of the husband. The death of the husband does not affect the homestead rights of the wife or children in any respect. If the land descends to them, it is still a homestead. If the husband wills it to the wife, as in this case, during her life, the life estate supports the homestead right. Any estate that is vendible under an execution will support the homestead exemption. VALENTINE, J., in Randal v. Elder, 12 Kan. 257, 261, says:

"We do not think it necessary that all these lots or parcels of land should be held by an absolute fee-simple title, but we think it necessary that they all be held by some kind of title or interest different from that which the whole public may have to the property."

Dillon, J., in Bartholomew v. West, 2 Dill. 290, 293, says:

"When the statute speaks of property owned by the debtor it does not mean that the ownership must be of full legal title. It is sufficient that the interest may be such as may be sold on execution, or subject to the payment of debts."

In Robinson v. Smithey, 80 Ky. 636, the court said:

"That Mrs. Robinson is entitled to a homestead, we think is clear. Her husband devised the entire tract of land to her for life, the remainder to his children, and she was in the actual possession and occupancy with her family. She is the owner and in possession of this tract of land, with a life estate vested in her by the provisions of the will. She can use, sell or dispose of this interest as she pleases, and we see no reason why her right to a homestead is not embraced by the statute. She occupies it as a homestead, and owns it for life. She is asserting her right because she is the owner, and not by reason of having derived it from her husband. It is immaterial in what manner she derives title, if she is the owner and occupies the estate as a homestead. In some of the states the homestead exemption is held to apply to an estate for years. See Patton v. Deberard, 13 Iowa 53; Johnson v. Richardson, 33 Miss. 462. In Illinois the owner of a life estate is held entitled: Deere v. Chapman, 25 Ill. 610."

Other courts have gone to as great length in holding that any vendible estate will support the homestead right. The plaintiff in error in this case holds by a devise, which gives her an estate for life, with power of sale, and any remainder goes to the children begotten of the marriage. She has such an estate in this land, without the will, or operation of the statutes of descents and distributions, as will enable her to claim it as a homestead because she has been in the actual possession of it, residing thereon ever since 1868. It must be held, for all the purposes of this case, that her homestead rights attached to the land when she first occupied it with her children, as the wife of Thomas Pilcher, the then owner, and that it was at the time of the commencement of this action still her homestead. The court below found that, in 1871 and 1872, the St. Louis, Lawrence &...