Rose v. Farmers & Mechanics Bank

Citations

• 95 Kan. 331
• 148 P. 745
• 1915 Kan. LEXIS 214

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Homestead — Execution Levied on Land Claimed as Homestead —Evidence—Instructions. In- an action to recover damages for the alleged wrongful levy of an execution on lands claimed by plaintiffs as their homestead, it is held that under the facts shown in the evidence and findings there'was no. error in an instruction which charged that if the plaintiffs at some time occupied the land as a homestead and the house became unfit to live in and for that reason they left the premises, it would not lose its homestead character, provided they proceeded within a reasonable time to make preparation for the return to the same, but that a long-continued residence elsewhere without any act on their part to prepare for a residence on the premises was a circumstance to be considered by the jury in determining the character of the absence from the land and the intent of the plaintiffs.</p> <p>2. Homestead — Instruction — Not Erroneous. In view of the evidence an instruction is approved which charged that if the jury found from the evidence that plaintiffs took no step to show their present intention to erect buildings for the purpose of residing upon the land as a homestead, and in fact, never occupied it as a homestead, it would be the duty of the jury to find for the defendant..</p> <p>3. Same — New Trial — Refusal Not Error. In the present case there was no error in refusing to grant a new trial in view of the findings of the jury, based upon sufficient evidence, to the effect that plaintiffs had never occupied the premises as a homestead.</p>