Ashton v. Ingle.

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 Kans. 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 Kans. 98; Robinson v. Wilson, 15 id. 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.

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 inclosure, 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 north-west 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

Ashton v. Ingle.

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 sometimes 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 such 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

Ashton v. Ingle.

rented and occupied by a tenant at the time such judgment was rendered.

Now, was the said north parcel of land, with the two small houses and the cistern, or any part thereof, a portion of Ashton's homestead, so as to be exempt from said judgment, execution and levy, under the provisions of 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.

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, it is clear that the exemption embraces his house and farm, not exceeding 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 nant to and part of his homestead. outside and separate industries."

cannot claim both as appurteThey constitute the basis of Greeley v. Scott, 2 Wood's Rep.

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657, 659. The foregoing views of Mr. Justice BRADLEY are fully sustained by the following cases: Casselman v. Packard, 16 Wis. 114; Kurz v. Brusch, 13 Iowa, 371; Rhodes v. McCormick, 4 id. 368; Hoitt v. Webb, 36 N. H. 158; Dyson v. Sheley, 11 Mich. 527; Gregg v. Bostwick, 33 Cal. 220; Iken v. Olenick, 42 Tex. 195. But on the other side of the question see the following cases: Hancock v. Morgan, 17 Tex. 582; Noland v. Reed, 38 id. 425; Hubbell v. Canady, 58 Ill. 425; Kelly v. Baker, 10 Minn. 154; Clark v. Shannon, 1 Nev. 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 ageed upon by several courts (here citing cases from California, Michigan, Wisconsin, Iowa and New Hampshire). It has been denied in Texas (here citing 38 Tex. 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 section 127 of his work, and 42 Tex. 105, 201); and in Illinois, where a dwelling and a storehouse occupied by a tenant stood upon one lot, the whole within the statutory limit of value, the storehouse 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 Ill. 425). See, also, section 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. 115.

In the case of Kurz v. Bursch, supra, Judge WRIGHT uses the VOL. XXVII — 26

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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, su 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.

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, purchasemoney, claims for improvements, and to enforce voluntary and pre-existing licns), subject to no limitations, except as to its extent as a homestead, and its use and occupation 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 occupation, 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 and limited sense. The word "homestead," does not include merely the dwelling-house, but it also embraces every thing connected therewith which may be used and is used for the more perfect enjoyment of the home, such as outhouses for servants, for stock,