The Palmer Oil and Gas Company v. Parish

• Citation: 59 P. 640,61 Kan. 311
• Decision Date: 01 January 1900
• Docket Number: 11,390
• Parties: THE PALMER OIL AND GAS COMPANY v. GEORGE W. PARISH
• Court: Kansas Supreme Court

59 P. 640

61 Kan. 311

THE PALMER OIL AND GAS COMPANY v. GEORGE W. PARISH

No. 11,390

Supreme Court of Kansas

January 1, 1900

January 6, 1900

Error from Allen district court; L. STILLWELL, judge. Opinion filed January 6, 1900. Affirmed.

Judgment affirmed.

Oscar Foust & Son, A. H. Campbell, and C. E. Benton, for plaintiff in error.

J. F Thompson, for defendant in error.

OPINION

JOHNSTON, J.:

This proceeding involves a question of homestead right. John W Boatwright owned, and with his wife occupied, as a homestead a quarter-section of land in Allen county. On April 5, 1894, Boatwright executed to George A. Bowlus & Co. a lease, giving them the right to enter upon the land and operate for oil, gas and minerals for a term of ten years, and their rights under the lease were subsequently assigned to the Palmer Oil and Gas Company. The wife of Boatwright did not join in the execution of the lease, and has never consented that it should be made. In October, 1894, Boatwright and wife conveyed the land to Mary A. Parish, and she in turn conveyed it to George W. Parish, who, shortly afterward, instituted this proceeding to declare the lease invalid and to quiet his title as against those claiming under it. The controlling question in the case is whether Boatwright and wife occupied the land as a homestead at the time the lease was executed -- a question mainly of fact, and it has been determined adversely to the claim of the company.

The lease was executed when Boatwright was absent from the land and while he was in Missouri, but it is claimed to have been a temporary absence, or, at least, that there was no abandonment of the homestead in Kansas. It appears that Boatwright and wife, in January, 1894, went to Fort Scott, where they remained for a number of weeks, and from there they went to Nevada, Mo. He placed his Kansas property in the hands of real-estate agents and endeavored to sell or exchange it for other lands. He left at the Kansas home, however, two of his sons, a a portion of his household goods, some hogs, cattle, and horses, as well as farming implements. Both of the sons had been living with them as part of the family, and in that year the cultivated land was rented to the older one, and the pasture land was reserved for the stock which he left there. Some of the cattle on the farm were sold during the summer and fall of 1894, and some of them remained on the place until March, 1895. The other son, who was only fifteen years of age, and who had always lived at home, continued to occupy the house with the older brother until May, 1894, when he rejoined his father and mother in Missouri. Some of the horses and hogs left on the place remained there until the spring of 1895.

Boatwright frankly stated in his testimony that when he went down into Missouri he desired to secure land there and contemplated moving there in case he could trade his Kansas land for property in Missouri. He further stated, however that it was his purpose to return and continue the occupancy of the Kansas land unless he could trade it. In answer to another question he said: "I did not consider myself permanently located until I got land of my own. I mean by that, I did not consider myself permanently located until I traded that land over there for other land, or went back to it." His wife testified that she considered the Allen county land their homestead until they traded it to Parish in October, 1894. She reiterated the...