Dean v. Evans

Citations

• 106 Kan. 389
• 188 P. 436
• 1920 Kan. LEXIS 525

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Homestead — Boundary by Agreement and Acquiescence — Occupation in Good Faith. An owner of a quarter section of' land occupied by him and his family as a homestead, the residence being understood to be on the line between the two halves of the tract, sold the east half of the quarter section, and with his wife continued to live in the west half of the residence. The owner and the grantee did not know the exact boundary line between the two halves of the tract, but it was orally agreed between them that the center of the house should be the dividing line between the two tracts, and this agreement has been acquiesced in ever since the conveyance was made. They were mistaken as to.the boundary line, as the house was found to be entirely on the east side of that line, but the outbuildings used in connection with the home were located wholly on the west side of the line. It was the intention of the plaintiffs to occupy the west half, including a part of the house, as their homestead, and there has been no change of purpose nor any cessation of occupancy. The tract occupied by plaintiff as his homestead was seized and sold under a judgment against the owner alone, and in an action brought by the owner and his wife to enjoin the issuance of a deed it is held that the property was exempt as the homestead of the owner and his wife.</p> <p>2. Same — Sale and Confirmation Under Execution Against Husband— No Estoppel Against Wife to Claim Homestead. Although the owner moved to set aside the sale under the execution and did not appeal from the overruling of his motion, and the confirmation of the sale, he and his wife were entitled to the remedy of injunction to prevent the issuance of a deed and a conveyance of their homestead, his wife not being a party to the action and judgment under which the execution was issued, and their action of injunction having been begun before the expiration of the period of redemption.</p>