Ashton v. Ingle , 20 Kan. 670 ( 1878 )

The opinion of the court was delivered by

Valentine, J.:

statement of the case. Ruth A. Ingle recovered a judgment in the district court of Leavenworth county against John Ashton and Joseph Ashton for the sum of $776.96. An execution was issued on this judgment, and placed in the hands of Percival G. Lowe, sheriff of said county. Lowe by virtue thereof levied upon certain real estate situated in said county, as the property of said John Ashton, and advertised the same for sale. Ashton then commenced this action against said Ingle and Lowe to restrain them from selling said property, and to set aside the levy of said execution. Trial was had in the court below, before the court alone, which trial resulted in a finding and judgment in favor of the defendants and against the plaintiff; and the plaintiff now seeks to have said finding and judgment reversed by this court.

Judgment liens. The plaintiff claims that said property is a part of his homestead, and therefore that it-is and was exempt from said judgment, execution, and levy. This is the only question in this case. Before proceeding however to discuss this question, we would say, that, as the finding of the court below was general, and in favor of the defendants, we must presume that everything necessary to be found in the case was found in favor of the defendants, and against the plaintiff Ashton. And also, where there was conflicting evidence we must presume that the court below believed that which was most favorable to the defendants,' and disbelieved that which contradicted it; and we must view the evidence in the same manner that the court below did. As to the status of the property, we must consider what such status was at the time when said judgment was rendered upon which said execution was issued, and not merely what it was at the time when said levy was made, or at the time when this suit was commenced, or trial had. For if the property was not a part of Ashton’s homestead at the time when said judgment was rendered, then the judgment became a lien upon the property; (Gen. Stat. 708, § 419; Kirkwood v. Koester, 11 Kas. 471,) and no subsequent homestead right or interest acquired by Ashton would defeat the judgment-lien. The judgment-lien in such a case would be paramount, and the homestead right or interest would be subordinate and inferior thereto. Bullene v. Hiatt, 12 Kas. 98; Robinson v. Wilson, 15 Kas. 595; Hiatt v. Bullene, ante, p. 557. And under and by virtue of such judgment-lien the property may be levied upon and sold under an execution issued on such judgment, although at the time of the levy and sale the property may be occupied as a homestead of the owners.

statement of facts. Said judgment was rendered on the 22d of January 1877. At that time the plaintiff Ashton owned a certain L-shaped piece of ground situated in Leavenworth city. This ground was all fenced in one inclosur'e, and there was less than one acre in the piece. One branch of the L fronted west on Broadway street, and the other branch fronted north on Oak street, and within the inner angle formed by the two branches of this L, one Helmer owned and occupied a piece of land. Helmer’s land also fronted on both Broadway and Oak streets, the two streets crossing each other at right angles at the northwest corner thereof. Lowe levied upon only a portion of that branch of said L which fronted north, on Oak street; and that which he levied upon is the only land now in controversy — and for convenience, we will call it one parcel of land,'the north parcel; and the portion of the L which he did not levy upon as another parcel of land, the south parcel. On the south parcel, Ashton had a large, fine, brick dwelling-house, which he, with his family, occupied as a residence. On this same parcel he also had a cistern, an outhouse, a barn, a hog-pen, a hen house, a wood yard, and proper walks. On the north parcel there were two small houses, and a cistern, and proper walks. These two small houses, with the grounds around them, were rented by Ashton to tenants, for a money rent; and up to the time when the judgment upon which said execution was issued was rendered, the tenants who for the time being occupied said houses and grounds had exclusive use thereof, except as follows: A clothes line was stretched from one of the small houses across the north parcel onto the south parcel, and was used jointly by all the occupants of both parcels of land. A walk also extended from the south parcel across the north parcel to. Oak street, which walk was used by the tenants of both houses, and sometiihes by the Ashtons. The cistern on the north parcel of land was used by the tenants of both houses all the time, and by the Ashtons “occasionally, when the other cistern gave out.”

After said judgment was rendered, Ashton, for the purpose of making said north parcel of land a part of his homestead, and for the purpose of defeating any levy of any execution which might be made upon said north parcel, assumed, at least nominally, greater control over the same, and over the houses thereon, than he had formerly done. In the written leases which were afterward executed he rented only certain rooms of the houses, and reserved to himself the rest of the houses, and the control of the grounds around them. Though in fact, and notwithstanding said written leases, he still allowed the tenants to occupy and use all of the two houses, and all the grounds around them, except the basement of one of the houses. But, as we have before stated, the question, so far as this case is concerned, is not governed by what transpired after said judgment was rendered, but it is governed by what transpired before and what existed at the time the judgment was rendered. The question is, not whether said north parcel has become a part of Ashton’s homestead since said judgment was rendered, but it is, whether it was a part of his homestead at the time when such judgment was rendered. At the time said judgment was rendered only one of said houses was actually rented, or occupied, and the other was vacant; but the vacant house had been occupied by a renter up to only a short time previously, and-was then kept by Ashton merely to be rented, and was shortly afterward rented. And the first time it was rented afterward, it was rented orally, and in the same manner that it had previously been rented. It was therefore, so far as any question in this case is concerned, substantially in the same condition as though it had been actually rented and occupied by a tenant at the time such judgment was rendered.

Homestead exemption laws construed. Now, was the said north parcel of land, with the two small houses and the cistern, or any part .thereof, a portion of Ash-ton’s homestead, so as to be exempt from said . ^ , ,. -it i .1 íudgment, execution, and levy, under the pro-J ’ , ’ , „ fL_ visions 01 the homestead exemption laws? We think not. The homestead- exemption law, so far as it applies to this case, reads as follows:

“A homestead, to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, [without regard to value,] occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale,” etc.

Autiiorities cited. Now the property, in order to be exempt must be “a homestead,” or a part of a homestead, and it must be “ occupied as a residence by the family of the owner.” Now the two small houses were not a part of Ashton’s homestead in fact, whatever they might be constructively. And they were not “occupied” at all by Ashton’s family, either as a “residence,” or otherwise. Mr. Justice Bradley, of the supreme court of the United States, in commenting upon the homestead exemption provision in the constitution of Florida, uses the following language: “In the case of a farmer, therefore, ^ i® clear ^Iat exemption embraces his house and farm, not éxceeding the amount limited, (160 acres, without regard to value.) Of course, it includes (and so the constitution declares) the improvements thereon. Those improvements, however, must be such as to-make them properly a .part of the homestead, such as outhouses, barns, sheds, wagon-houses, fences, etc. They would not embrace tenant houses, though built on the farm, for these would be no proper part of the farm homestead. They constitute capital separately invested. They produce a revenue of their own, distinct from that of the farm. For the same reason, the farmer’s homestead would not include a saw-mill, or a grist-mill, or a carding-and-fulling mill, though erected on a portion of the tract of which the farm is a part. These are separate enterprises, in which the farmer has been enabled to invest his surplus capital. They are no part of the farm. If he runs them, he does it as a separate business from that of his farm, and he cannot claim both as appurtenant to and part of his homestead. They constitute the basis of outside and separate industries.” Greeley v. Scott, 2 Wood’s Rep. 657, 659. The foregoing views^of Mr. Justice Bradley are fully sustained by the following cases: Casselman v. Packard, 16 Wis. 114; Kurz v. Bursch, 13 Iowa, 371; Rhodes v. McCormick, 4 Iowa, 368; Hoit v. Webb, 36 N. H. 158; Dyson v. Shelley, 11 Mich. 527; Gregg v. Bostwick, 33 Cal. 220; Iken v. Olenick, 42 Texas, 195. (But on the other side of the question see the following cases: Hancock v. Morgan, 17 Texas, 582; Nolan v. Reed, 38 Texas, 525; Hubbell v. Canady, 58 Ill. 425; Kelly v. Baker, 10 Minn. 154; Clark v. Shannon, 1 Nevada, 568.)

Mr. Thompson, in his valuable work on Homesteads and Exemptions, section 130, uses the following language: “This last case, (that of Gregg v. Bostwick, supra,) very clearly conducts us to the rule, that houses built for the purpose of being rented to tenants, thus yielding to the debtor a revenue separate from any use immediately connected with his dwelling, form no part of his homestead. This rule, at once so reasonable and easy of application, has been agreed upon by several courts, (here citing cases from California, Michigan, Wisconsin, Iowa, and New Hampshire.) It has been denied in Texas, (here citing 38 Texas, 425,) but, as we have seen, in pursuance of a view of the constitution of that state, which had been since substantially overruled, (here citing sec. 127 of his work, and 42 Texas, 105, 201;) and in Illinois, where a dwelling and a store-house occupied by a tenant stood upon one lot, the whole within the statutory limit of value, the store-house was held a part of the homestead — a view which must be deemed salutary, under a statute limiting the value of the homestead to $5,000,” (here citing 58 111. 425.) See also sec. 120 of Mr. Thompson’s work, and cases there cited.

In the case of Casselman v. Packard, supra, Judge Cole uses the following language: “We cannot believe the legislature ever intended that a person should hold all the buildings which might be erected upon a quarter of an acre of ground in a city or village, whatever might be their character, or for whatever purposes they were designed, under the homestead exemption law, merely because he might live in one of them. Such a construction seems to us most unreasonable. The statute exempts the given quantity of land, with the dwelling-house thereon, and its appurtenances. Of course, the exemption of that quantity of land has regard to the purposes for which it is used.” 16 Wis. 120.

In the case of Kurz v. Bursch, supra, Judge Wright uses the following language: “It was never intended that' other buildings, though on the same lot, buildings not appurtenant to the homestead as such, those not used and occupied by the owner in the prosecution of his own ordinary business, those rented and yielding a revenue to their owner — we say it was never intended that such should be exempt. If so, the law could be made to cloak the most stupendous frauds. For if one such building may be exempt, so may all that could be placed upon a half-acre, if in a town, or forty acres, if in the country, without limit as to value. And thus the statute, instead of securing to the family a home, where they may be sheltered, and live beyond the reach of financial misfortune and the demands of creditors, would give them property never contemplated by its letter or spirit.” 13 Iowa, 374, 375.

Homestead exemption laws, in Kansas. Tenant houses, rented by owner. In Kansas there is no homestead exemption law as against taxes, or purchase-money, or claims for improvements, or liens given by the consent of the owner and wife, or owner and husband, as the case may be, or . , . •. liens existing against the property prior to its occupancy as a homestead; but as to every other debt or claim there is a liberal homestead exemption law. Under it the owner of real estate may hold the same exempt from all process, (except that for the collection of taxes, purchase-money, claims for improvements, and to enforce voluntary and preexisting liens,) subject to no limitations, except as to its extent as a homestead, and its use and oeeupation as such. As to its extent as a homestead, the owner may hold 160 acres of farming land, or one acre within the limits of an incorporated town or city, without regard to value. It may be covered with costly buildings, with palatial residences worth hundreds of thousands of dollars, and yet all be held exempt from process, provided it can all be called the homestead of the owner. As to use and oeeupation, it must be used as the homestead of the owner, and must be occupied by his family as a residence, or it will not be exempt. Any portion of his real estate not so used and so occupied will not be exempt, whatever may be the extent or value of such real estate, great or small. But the law however does not use the words “homestead,” and “occupied,” and “residence,” in any narrow or limited sense. The word “homestead,” does not include merely the dwelling-house, but it also embraces everything connected therewith which may be used and is used for the more perfect enjoyment of the home, such as outhouses for servants, for stock, or property, gardens, yards, and farming land to the extent of 160 acres, or land within the limits of an incorporated town or city to the extent of one acre. The word “occupied,” does not always require an actual occupancy, but it may sometimes permit a constructive occupancy. The word “residence,” like the word “homestead,” is not confined merely to the dwelling-house, but it may also include everything connected therewith used to make the home more comfortable aud enjoyable. But the words “homestead” and “residence,” cannot be . , -i -t , i >1 -\ • i i , intended to include some other and independent ^ family’s home and residence. Where houses and lots are rgnted, for a money rent, to tenants, who are not servants or employés of the owner, with the intention that such houses and lots shall become the homes and residences of such tenants and their families, and they actually do become the homes and residences of such tenants and their families, the owner certainly cannot then claim that such houses and lots are a part of his own home and residence, although they may adjoin the same. In order that anything shall be a part of tbe homestead, it must not only be connected therewith as one piece of land is connected with another to which it adjoins, but it must also be used in connection therewith and as a part thereof. In legal phrase, it must be appurtenant thereto. Any other view than this would allow an owner of real estate in a city to own hundreds of thousands of dollars worth of property exempt from his just and legal debts. He could cover his acre of ground with costly buildings, rent a portion thereof to various families for residences, rent other portions for business purposes, other portions for manufacturing purposes, and others still for offices, and reserve merely one, two, three, or four rooms for his own use as a residence, and then hold all these buildings, and the acre of ground, exempt from his just debts. The framers of the constitution and of the exemption laws certainly never contemplated any such result from their labors.

The judgment of the court below must be affirmed.

All the Justices concurring.