The New England Trust Company v. Nash

• Decision Date: 01 December 1896
• Docket Number: 209
• Citation: 5 Kan.App. 739,46 P. 987
• Parties: THE NEW ENGLAND TRUST COMPANY v. T. E. NASH
• Court: Kansas Court of Appeals

46 P. 987

5 Kan.App. 739

THE NEW ENGLAND TRUST COMPANY v. T. E. NASH

No. 209

Court of Appeals of Kansas, Southern Department, Western Division

December 1, 1896

Decided December 1, 1896.

Error from Rice District Court. Hon. J. H. Bailey, Judge. Affirmed.

Judgment affirmed.

John C Hall, and A. M. Lasley, for plaintiff in error.

Sam. Jones, for defendant in error.

OPINION

COLE J.

This action was brought by T. E. Nash in the District Court of Rice County, to set aside certain mortgages executed by Jesse G. Hurt upon a piece of real estate in said county, and to reform certain deeds described in the petition. There are a number of questions which, it seems to us, are presented by the record; but only two of them are discussed by counsel in their briefs, and we will pass upon only such questions as are presented. The facts so far as they relate to the questions before us are as follows:

In 1874 Jesse G. Hurt filed a homestead entry upon the land in question, which ripened into a patent in 1879. He resided continuously upon the land from the time of making such entry until the year 1885, and with him during all this time lived his wife, Lucy Ann Hurt, his two sons and daughter-in-law. In the year 1885 the wife of Jesse G. Hurt went to Sterling, in the same county in which the land was situated, and lived with her daughter, on account of some difficulty between herself and one of her sons, but the record does not disclose whether such removal was temporary or permanent.

On the nineteenth of March, 1887, Jesse G. Hurt executed and delivered to the plaintiff in error the mortgages in question in this case, the wife of Jesse G. Hurt in no manner joining in said conveyances. On the twenty-third of August, 1888, Jesse G. Hurt conveyed by deed to his two sons, Charles and Abner, the real estate in question, but the wife did not join in this conveyance, nor did the grantees assume the payment of the mortgages given to the plaintiff in error. On the twenty-fourth of September, 1888, Charles Hurt and wife and Abner Hurt conveyed the premises in question, by warranty deed, to the defendant in error who in said conveyance assumed the payment of the mortgages given to plaintiff in error.

In all the conveyances executed by Jesse G. Hurt he represented himself as an unmarried man. The questions presented are first, did the real estate in question remain the homestead of Jesse G. Hurt, and, second, was the defendant liable under his assumption of the mortgages in the deed of conveyance given to him? We are of opinion that the first question must be answered in the affirmative. There can be no doubt that, when Jesse G. Hurt settled upon the land in question with his wife, his two sons and daughter-in-law and continued to live upon the same, the character of a homestead was imparted to the land. No act caused the land to lose this character up to the time of the execution of the mortgages in question, unless it was the removal of...