Pitney v. Eldridge

• Decision Date: 08 May 1897
• Docket Number: 9810
• Citation: 58 Kan. 215,48 P. 854
• Parties: O. L. PITNEY v. W. J. ELDRIDGE et al
• Court: Kansas Supreme Court

48 P. 854

58 Kan. 215

O. L. PITNEY v. W. J. ELDRIDGE et al

No. 9810

Supreme Court of Kansas

May 8, 1897

Decided January, 1897.

Error from Crawford District Court. Hon. J. S. West, Judge.

Judgment reversed.

Fuller & Randolph, for plaintiff in error.

D. B Van Syckle and E. W. Arnold, for defendant Haldeman.

OPINION

JOHNSTON, J.

W. J Eldridge was the owner of a forty-acre farm, situated in Crawford County, which he, with his family, occupied as a residence and homestead. In January, 1886, he and his wife joined in a lease of a part of the tract to the Girard Nursery Company for a period of ten years, with the privilege of re-renting it for another term of ten years. The absolute control of a portion of the tract on which his home and buildings were situated, was reserved. Under the terms of the lease, the rented portion was to be used by the company for propagating and handling nursery stock and carrying on the nursery business. It was stipulated that the rental should be two hundred dollars per year, payable in semi-annual installments of one hundred dollars on the first days of June and December each year. It was provided that, if default was made in the payment of rent or there was a breach of any of the covenants of the lease, the Eldridges might re-enter and take possession, the company waiving notice to quit; and there was the further provision that, at the termination of the lease, the company should deliver up the premises to the Eldridges. When the lease was executed, and for some time afterward, Eldridge was an officer and stockholder in the company. Buildings were erected on the leased premises, by the company, which were used as an office and for handling nursery stock. About four years after the lease was executed, a dispute arose between Eldridge and the company as to the extent of the leased premises, and the company erected a picket fence around the portion which it claimed was included in the lease. The dispute was carried into court, where the boundaries of the leased premises were determined; after which the fence erected by the nursery company was placed upon the line so determined. On April 7, 1890, the Eldridges borrowed two thousand dollars from O. L. Pitney, and gave him their promissory note, and a mortgage upon the forty-acre tract of land. Eldridge also owed H. W. Haldeman the sum of $ 2,500, to recover which, Haldeman, on January 22, 1890, brought an action; and on April 14, 1890, a judgment in his favor was rendered for $ 2,583.33. The April, 1890, term of said court, at which the judgment was rendered, convened April 2, 1890. There were other liens against the premises, but, in view of the conclusion which we have reached, a recital of the same is unnecessary. Default was made on the mortgage given to Pitney, and, when he brought this action of foreclosure, Haldeman, the judgment creditor, set up his judgment, claiming that the leased premises were no part of the homestead of the Eldridges, and were, therefore, subject to the lien of the judgment. The trial court held that, by the execution of the lease, Eldridge and his wife waived their homestead rights in that portion of the farm which was leased to the nursery company; and that, from and after the execution of the lease, it was divested of its homestead character and became subject to the payment of the debts of Eldridge. Accordingly, the Haldeman judgment was adjudged to be a lien upon the leased premises prior to that of the Pitney mortgage. For the same reason, the judgment lien was determined to be prior to a subsequent mortgage and other liens created by the Eldridges.

The objections made to the record are deemed to be without merit and will not prevent the consideration of the questions presented for review; the principal one being, whether the leasing of a part of the homestead to, and its use by, the nursery company operated as a waiver or abandonment of the homestead right. If the right was destroyed, the judgment became a lien as of the first day of the term of the court at which it was rendered, and that was five days before the first mortgage was made and recorded. Up to the time of the execution of the lease, at least, the whole forty-acre tract was the homestead of the Eldridges. It was outside of the corporate limits of a city, was held in the same ownership, and occupied and used as an entirety. The waiver or abandonment of a homestead after it has once been established in good faith, must, of course, be largely a question of intention. While occupancy in good faith is essential to the exemption right, it is not...