The Lenora State Bank v. Peak

• Decision Date: 01 February 1896
• Docket Number: 92
• Parties: THE LENORA STATE BANK v. J. S. PEAK
• Court: Kansas Court of Appeals

44 P. 900

3 Kan.App. 698

THE LENORA STATE BANK v. J. S. PEAK

No. 92

Court of Appeals of Kansas, Northern Department, Western Division

February 1, 1896

Opinion Filed May 5, 1896.

MEMORANDUM.-- Error from Norton district court; A. C. T GEIGER, judge. Action by The Lenora State Bank against J. S Peak. Motion by defendant to set aside a sale of lands on execution because exempt. Granted. Plaintiff brings the case to this court. Reversed. The opinion herein, filed May 5 1896, states the material facts.

Judgment reversed.

John R. Hamilton, and L. H. Wilder, for plaintiff in error.

L. H. Thompson, for defendant in error.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

On a judgment rendered September 28, 1892, in the district court of Norton county, in favor of the Lenora State Bank against J. S. Peak, an execution was issued January 9, 1894, and certain lands of the defendant levied upon and sold, among them being a tract of 160 acres which the defendant claimed to be exempt as his homestead. On his motion, the sale, as to this tract, was set aside, on the ground that it was so exempt. This ruling of the court is now complained of by the plaintiff in error, who was the plaintiff below.

The record shows that the defendant owned 760 acres of land in one body, including the claimed homestead, described as the south half of the northeast quarter and the north half of the southeast quarter of section 20, in township 5 south, range 24 west. At the time said judgment was rendered, the entire tract of land was occupied and used by the defendant as one farm, the dwelling-house and farm buildings being on the south half of the southeast quarter of section 17, in said township and range, where they had been occupied by him continuously from 1876 until about September 29, 1893. The improvements consisted of a substantial stone dwelling-house and other farm buildings, which Peak had constructed at a cost of about $ 2,000. There was no house on the land claimed as the homestead until about the 29th day of September, 1893, when a rude shed was constructed on the same, without doors or windows, openings being left therefor, in which he lived for a short time thereafter. During the following winter, and until about May 1, 1894, the family occupied the stone dwelling-house on section 17. At the date last named, a frame house, 14 by 16 feet, was moved onto the land in section 20, and was occupied by the defendant and his family on May 15, 1894, at the time of the hearing of the motion to set aside the sale. The land claimed as a homestead was acquired by the defendant under the pre-emption act of congress, final proof therefor being made in 1876, to which time he resided thereon. In 1876 the defendant made a homestead entry on the north half of the northeast quarter of said section 20 and the south half of the southeast quarter of section 17, and established his residence thereon in a house on the last-named section.

The only matter urged for our consideration is whether the land in question was the homestead of the defendant at the time the judgment was rendered. The language of the constitution, as well as of the statute, is:

"A homestead to the extent of 160 acres of farming land, . . . occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists."

Under these provisions, occupancy as a residence, either actual or constructive, is essential to give the homestead character to any tract of land. The test in every case is use. As the courts view with favor a claim of this kind, it is held, by a liberal construction of the statute, that actual occupancy as a residence is not essential to entitle one to the exemption, when his relations to the land are such as show his present intention to make such use of the land within a reasonable time. It is not sufficient, however, that there be a mere intention so to occupy it at an indefinite time in the future or contingent upon the happening of some uncertain event. If a residence has not been established by actual occupancy, the acts of a party must confirm his declared intentions, and both acts and declarations must be verified by subsequent actual residence. (Edwards v. Fry, 9 Kan. 417; Ingels v Ingels, 50 id. 755.) The homestead character must also have attached to the land prior to the time when the lien of a judgment would have attached thereto had it not been so exempted. If it was not the homestead at the time the judgment was rendered the lien attached, and was unaffected by the subsequent acts of the owner in establishing his residence thereon. (Bullene v. Hiatt, 12 Kan. 98; Ashton v. Ingle, 20 id. 670.) The land claimed as a homestead must also be a single tract or be composed of contiguous pieces of land. (Randal v. Elder, 12 Kan. 257; Linn Co. Bank v. Hopkins, 47 id. 580.) It necessarily follows that in every case where there is actual residence the location of the dwelling-house of the owner is a matter of prime importance. The building intended for and occupied as a residence is inseparable from the homestead; and when the selection is made out of a larger body of land than is exempt it must begin with the dwelling-house and the land immediately occupied by it and extend to other lands...