The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1899-06-22
WILL GET NEW TRIAL
Appellate Court ReVerses
Judgment in Injunction Suit.
MAGEES VS.. RUFF CONE
Important Point of Law Re-
garding Homestead Rights.

just handed down his opinion in the cast
Of G. D. Osborn and ex-sherir Cone
plaintiffs in error. against Flora A. Maget
and ]. H. Magee, defendants in error
which was tried in the Sedgwick county
district court before Judge Reed Judge
Millions opinion reverses the judgment Of
the trial court, which was against Osborn
and Gone, and remands the cause for q
new trial. The opinion was not unani
mously agreed TO by the appellate court
judges, as Presiding Judge Dennison dis
sents to the opinion rendered by Judge
Milton, thus showing that the case Is very
deeply involved with fine and myeteriou.
legal points which are very hard to deter
mine.
The case involves the homestead rights
Of Mr.. and Mrs. Magee. who in 1880, pur-
chase, tract OF land, intending to acquire
a homestead thereby. The land was leased
to tenant Of the grantor, and the pur-
chasers allowed the lease to be extended
until after harvest Of 1891. On October 20
1891. Mr.. and Mrs. Magee moved upon the
ter, and was subject to levy under the ex-
until! six days after 1t had been levied up
on by an execution by Sheriff Cone. The
evidence showed that the removal OF the
purchasers was hastily made and Judge
Milton therefore holds that the land was
not invested with the homestead charac-
ter. and was subject to levy under the ex-
ecution. In his opinion Judge Milton says,
in part:
'7fr. ana Mrs. Magee had moved from
their former homestead, a farm Of 1e0
acres in Sedgwick county, which they had
previously encountered with two mort
cages, the first to the Farmers Loan and
Trust Co, and the second to @. d.
Osborn At the dates named the mort
cages were in process OF foreclosure in a
single foreclosure action, and on October
IA. 1890, judgment was entered in favor
OF the mortgages. When the land was
sold the proceeds were SUFFICIENT to sat
isfy the first mortgage only. The amount
due Osborn at that time was $3.50. no
part Of which was paid at the time Of
commencement Of the present action. The
testimony on behalf OF the plaintiffs below
tended to prove that at the time Mrs.
Magee purchased the eighty acre tract,
the same at some future time as a home
stead. They were aware Of the existence
Of the tenancy at the time OF the pur-
chase. Mfr. Magee tried without success
to get possession of the tenant, and after
wards agreed that the tenant should oc-
cupy the land to the end Of his term, the
rent obe paid to Mr.. Magee In the
fall OF 1890 the tenant sowed wheat upon
the land with the consent OF the defend
ant in error who also agreed that the
tenant might remain on the farm until
after the wheat harvest Of 1891. After the
harvest, Mr.. and Mrs. Magee actually re-
moved to their premises claimed as a
homestead, six days after the levy had
been made under an execution IN favor of
Osborn. The removal was hastily made
and without any preparation therefor.
The house on the land contained only two
rooms and in one of them wheat was
stored. On the preceding day, Mr. Ma
gee, learning of the levy. had consulted an
attorney regarding the matter. Sometime
prior to the levy OF the execution Magee
had gone to Oklahoma with the expecta-
ton Of locating on public land, but he
abandoned the idea and returned. This
action was commenced by AIRS. Magee, and
afterwards she was permitted to amend
her petition by joining her husband as
plaintiff. They had no other real prop
erty.
DO the foregoing facts sustain the find
ing OF the lower court that the land
In controversy was the homestead of Mr..
and Mrst Magee at the date OF the levyY'
Judge Milton cites a number of refer
ences regarding the proper definition Of
the homestead rights. and flys:
Referring now to the foregoing facts,
It will be seen that Mrs. Magee purchased
the tract of land and she and her husband
intended to occupy the same as a home
stead at some future time. They were
aware OF the existing tenancy and the
purchase was completed before any ef-
fort was made 10 terminate such ten
ancy. II is possible that the tenancy ex-
sting at the date Of the purchase might
be regarded as a temporary obstacle rre-
venting immediate occupancy and that the
defendants in error might have acquired |
a homestead right IN the land notWith-
SldF0lIlS the ISCL OF Sucn tenancy. but |
It Is doubtful if previous decisions have
ever gone to that extent However, as
Stunning this TO be true, there is no, in |
The record anything to excuse the conduct
IF the defendants IN error in extending
he term of the tenancy from March 10 /
some indefinite date after harvest
The defendants IN error showed affirm |
ltive!y by their own acts that whatever |
mention OF present occupancy they en- /
erta!ned when the land was purchased
lad been abandoned. The execution 10
.niorce the judgment having been levied
Ifter the abandonment % the intention OF
and before actual occupancy OF
ne land by AR. and Mrs. Magee, a home
tead right therein did not exist at the
late OF the levy and was not acquired
y occupancy after the levy. The trial
ourt erred in declaring the tract IN con-
roversy 10 be a homestead and exempt
rom levy and sale under the execution"