Stowell v. Kerr

Decision Date09 December 1905
Docket Number14,307
Citation83 P. 827,72 Kan. 330
PartiesJOHN STOWELL v. THOMAS A. KERR et al
CourtKansas Supreme Court

Decided. July, 1905.

Error from Nemaha district court; WILLIAM I. STUART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HOMESTEADS--Equitable Title--Exemption. A homestead exemption may be claimed by a debtor in land to which he has only the equitable title, where he occupies the land with his family as a home.

2. HOMESTEADS Purchase--Intention--Subsisting Judgment. Where land is purchased with the definite intention of making it a homestead, and immediately afterward the purchaser and his family go into possession of the same and continue to occupy it as their homestead, a judgment subsisting against him at the time of the purchase will not become a lien thereon.

John Stowell, for plaintiff in error.

J. E Stillwell, for defendants in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.

In this proceeding John Stowell seeks to subject an eighty-acre tract of land occupied by Thomas A. Kerr and his family as a home to the payment of a judgment against Kerr and in favor of Stowell. The judgment was rendered in the justice court, and an abstract of it was filed in the district court on December 6, 1900. It appears that the Kerrs induced S. F. Springer, a relative by marriage, to purchase a home for them, and he did so by buying forty acres on April 3, 1903, and a contiguous forty-acre tract on February 1, 1904. The purchase-money was advanced by Springer, and the title was taken in his name as security for the money advanced. The land was bought by Springer with the intention that Kerr and family should occupy it as a rural homestead. It was immediately occupied by the Kerrs as their home, an occupancy which has continued ever since the purchase. The court held that the judgment lien did not attach to the land.

The judgment of Stowell appears to have been valid and subsisting when the land was purchased, and, of course, it became a lien on all the property of Kerr which was subject to judgment liens. Such a lien can never take precedence, however, of a homestead right, nor in any way affect a homestead. Kerr had an equitable interest in the land in question--an interest sufficient to uphold a homestead right. (Tarrant v. Swain, 15 Kan. 146; Moore v. Reaves, 15 Kan. 150.) Plaintiff argues that, as the judgment was on file and in force when the land was purchased, the lien of the judgment attached instantly and before the land became invested with the homestead character. As the land was purchased with the definite intention of making it a homestead, it had the homestead character from the beginning. The law does not prohibit a judgment debtor from procuring a homestead which will be exempt from forced sale for debts, nor is there anything in its purpose warranting the view that in the purchase of a homestead a judgment lien will outrun a homestead interest. On the other hand the homestead law is given a practical and liberal interpretation, in keeping with its policy and purpose. While occupancy is an essential feature of a homestead right, it is well known that complete occupancy at the moment of purchase is frequently impracticable. So it was said in Edwards v. Fry, 9 Kan. 417, 425:

"We know that the purchase of a homestead, and the removal onto it, cannot be made momentarily cotemporaneous. It takes time for a party in possession to move out, and then more time for...

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14 cases
  • Redmond v. Kester
    • United States
    • Kansas Supreme Court
    • June 8, 2007
    ...statutory provision allowing padlocking of homestead for illegal sale and possession of intoxicating liquor); Stowell v. Kerr, 72 Kan. 330, 332, 83 P. 827 (1905); Tarrant v. Swain, 15 Kan. 146 (1875); Moore v. Reaves, 15 Kan. 150 (1875) (holding that equitable owner of interest in real esta......
  • In re Kester
    • United States
    • U.S. Bankruptcy Appellate Panel, Tenth Circuit
    • March 13, 2006
    ...in the land, and that the homestead statute protected the wife of the purchaser from transfer of that interest without her consent.19 In Stowell v. Kerr, a relative lent money to the debtor for the purchase of a homestead, but kept the legal title to the property in his own name.20 The cour......
  • Deutsche Bank Nat. Trust Co. v. Rooney
    • United States
    • Kansas Court of Appeals
    • June 20, 2008
    ...counterpart. 284 Kan. 209, Syl. ¶¶ 1, 2, 159 P.3d 1004; see West v. Grove, 139 Kan. 361, 366, 31 P.2d 10 (1934); Stowell v. Kerr, 72 Kan. 330, 331, 83 P. 827 (1905). The interpretation of the Morris court, to which we continue to adhere, is in keeping with these interpretive We note that Ka......
  • In re McGinnis
    • United States
    • U.S. Bankruptcy Court — Western District of Missouri
    • February 13, 2004
    ...right to possession thereof, constituted a conveyance sufficient to invoke the due-on-sale clause of a mortgage); Stowell v. Kerr, 72 Kan. 330, 83 P. 827, 828 (1905) (stating that the purchaser of real property "had an equitable interest in the land in question — an interest sufficient to u......
  • Request a trial to view additional results
1 books & journal articles
  • Kansas Homestead Law
    • United States
    • Kansas Bar Association KBA Bar Journal No. 65-04, April 1996
    • Invalid date
    ...[FN49]. No. 87-40572 (Bankr. D. Kan. September 17, 1987). [FN50]. E.g., Swenson v. Kiehl, 21 Kan. 533 (1879). [FN51]. Stowell v. Kerr, 72 Kan. 330, 332, 83 P. 827 (1905); Upton v. Coxen, 60 Kan. 1, 55 P. 284 (1898); Monroe v. May, Weil & Co., 9 Kan. 466, Syl. ¶ 3 (1872); Edwards v. Fry, 9 K......

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