Rush v. Gordon

• Decision Date: 11 February 1888
• Citation: 38 Kan. 535,16 P. 700
• Parties: H. D. RUSH, et al., v. WILLIAM GORDON
• Court: Kansas Supreme Court

16 P. 700

38 Kan. 535

H. D. RUSH, et al., v. WILLIAM GORDON

Supreme Court of Kansas

February 11, 1888

Error from Leavenworth District Court.

ON or about February 1, 1882, H. D. Rush recovered a judgment in the district court of Leavenworth county against William Gordon upon an account for flour, for the sum of $ 2,338.56 and costs of suit. About May 8, 1883, an execution was issued on such judgment, and at the instance of Rush was levied by John W. Prest, the sheriff of Leavenworth county, upon lots 6 and 7, in block 24, in Leavenworth city; said lots being the property of the said William Gordon. The sheriff then advertised that he would sell said lots on June 18, 1883. On June 13, 1883, William Gordon commenced this action in the said district court, against Rush and Prest, to perpetually enjoin and restrain them from selling said lots, upon the ground that the lots were the plaintiff's homestead, and were exempt from execution or judicial sale. The defendants answered, and the plaintiff replied. On July 5, 1884, the case was tried before the court without a jury, and the court made the following findings and conclusions, to wit:

"1. The plaintiff purchased the respective lots described in his petition at the times set out in his petition, and he has resided on said lots with his family ever since he purchased them, and has had no other residence; said lots are contiguous to each other, and are each twenty-four feet by one hundred and twenty-five feet in dimensions.

"2. Prior to the year 1868, there was on said lot 6 a frame house, which was occupied by the plaintiff as his home, as well as a retail grocery store, he and his family occupying the upper-story rooms, and the ground floor being used as a retail grocery store by said Gordon.

"3. In the year 1867 the plaintiff built on lot 6 a house fronting on Shawnee street in the city of Leavenworth, and extending back from Shawnee street ninety feet, which house so built is of brick walls and is twenty-four feet wide, and has a cellar under the entire length of the same eight feet deep and extended into the pavement on Shawnee street four feet; and the extension into the pavement on Shawnee street was inclosed with area walls and covered with an iron grating for a pavement over the same. The first story above ground ninety feet deep, was built for and has always been used for a business room as a retail grocery store, and the cellar has been used and was built for the same purpose, except that the heating apparatus for the entire building was and is in the cellar, and a cistern to supply water for the use of the building was in the cellar. The business room on the first floor was unplastered and unfinished other than the brick walls, and was supplied with counter, shelving and for a first-class retail grocery store, and as such has always since that time been used. There was a hall-way on the east side of the building so constructed leading to a second and third story above said business room separated by a board partition from the store room, which second and third stories were built at the same time as the other, and the plaintiff and his family have, during all the time since the construction of the building, lived in such second and third stories, except so far as they have occupied a portion of the building on the other lot as hereinafter set forth. The lot is 125 feet deep by twenty-four feet wide, and the stable was built on the rear end of the same. There was a hatchway from the grocery store room to the cellar, and also a stairway. After the purchase of lot 7, the plaintiff built thereon a brick building ninety feet deep, joined to the wall of the other building and fronting on Shawnee street, with a cellar eight feet deep under the same the entire length of the building, and with windows or area walls in the Shawnee street pavement, and with a hatchway from the business room on the first floor, and also a stairway into the cellar. The room on the first floor...