The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-12
TAKES IT BACK.
Supreme Court Reyerses Itself
ON Homestead Law.
Property Exempt Though Fami-
ly Has But One Representative.
JACKSON COUNTY CASE
Decision There Bas ed on Former
Decision There Bas ed on Former
Action of Court.
Justice Henry Mason Writes
the New Opinion.

The supreme court has reversed it
self on the homestead law of the state
and has held, in the case of Mary E.
Weaver against the First National
Bank of Chicago, that when a piece
of land is once owned as a homestead,
it continues to be a homestead, ex-
empt from debt, so long as any mem
Der of the original homesteader's fam
lily occupies it.
This is exactly contrary to an opin-
ion rendered in 1902 by the Kansas
supreme court. and the new opinion
shows that at least one member of
the court has changed his mind since
that time. The judges who rendered
the opinion in 1902 were Doster, C. j.,
Johnston. w. r. Smith, Cunningham,
Greene. Ellis and Pollock. Judge
Johnston is now chief Justice All
the others have, from various causes,
retired from the supreme bench
The new opinion of the court is
written by Justice Mason, and is I'M
animous. 1t reverses the decision of
the Jackson county district court
which was based on the 1902 decision
of the court. The decision is a new
milestone in the homestead law of
kansas, and will be of great impor-
lance in the lawsuits of the future
The First National bank of Chicago
obtained judgment against Mrs.
Weaver upon an Indebtedness which
originated in 1905, and caused an ex-
ecution to be levied against her home
stead Mrs. Weaver brought an action
to enjoin the sale, claiming that the
property was exempt. The lower
court denied her any relief, and she
appealed to the supreme court.
The property was at one time the
husband. He died in 1881 Mrs.
Viewers children became of age and
moved away, leaving her the sole &C.
cupant of the property.
the family having dissolved, the
homestead continues to be exempt
from debts contracted by the sole re-
naming member of that family in
possession of the original homestead.
The court says in it's syllabus:
Although under the provision of
the Kansas constitution that a home
stead occupied as a residence by the
family of the owner shall be exempt
from forced sale under any process
originate without the existence. of a
family-of household consisting of
more than one person-yet when the
homestead character has once at
tached, 1t may persist for the benefit
OF a single Individual who is the sole
surviving member Of the family
Where wife after the death of her
husband continues to reside on the
family homestead, although she is the
sole occupant, it is exempt against her
own creditors as well as against fhei
creditors of her husbands. estate. ire
specttve of the time the Indebtedness
was incurred, and without regard, to
which spouse held the legal title to the
property during their married life"
In making this decision of the case
the supreme court overruIes the decis-
ion of the Kansas supreme court in the
case of Ellinger versus Thomas, which
was reported In the Gath Kansas. The
syllabus of that case said:
81 homestead claimant uhoCa
is dead, and whose children have grown
to maturity and moved away and ceased
their dependence upon him and no long
er constitute part of his family no one
else being associated with him in the
family relation. cannot continue to re-
tain the homestead exemption"
In overruling this former decision of
the court the new opinion says:
Doubtless substantial justice may
often be better promoted by adherinG
to an erroneous decision than by over
throwing a rule once established. But
in so importanta matter as the enforce
ment of the homestead rights guaran-
teed by the constitution, the court feels
an obligation to re-examine difficult
and doubtful question in the aspect of
any new light that may be offered"
In conclusion the court says: This
court is convinced that In Ellinger VS..
Thomas, too strict a rule of construc-
ton was adopted; that a more liberal
Interpretation, resulting in a different
conclusion. would have been more in
harmony with the constant effort
shown to give effect to the spirit of
homestead enactments In the light of
the broad general purposes they are de-
signed to accomplish; that it is better
to disprove the doctrine there announced
than to try to retain it as a portion of
a system with other parts of which it
is in essential conflict. That decision is
therefore overruled."