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Anderson v. Shannon

73 P.2d 5, 146 Kan. 704, 114 A.L.R. 200, 1937 Kan. LEXIS 45
Supreme Court of Kansas·Decided November 6, 1937·No. No. 33,599; No. 33,600·Published·Cited by 24 cases

Opinion

The opinion of the court was delivered by

Wedell, J.:

These appeals are taken by a defendant owner of real property, consisting of a theater building, from two rulings. [705]*705The principles involved in the rulings are the same in each of the two cases. The first involves an order overruling the motion of defendant to set aside an execution sale on the alleged ground the property constituted defendant’s homestead. The second pertains to the confirmation of sale.

Two separate creditors filed actions and obtained money judgments against defendant. General executions were issued to satisfy the judgments. Separate sales of the theater property were had pursuant to the respective executions. On June 25, 1937, this court consolidated the appeals. Evidence was offered by defendant in support of her motion to set aside the sales on the ground the theater building constituted a homestead. It was agreed the evidence offered on the motion in the one case should govern both cases. Plaintiffs offered no evidence. Upon consideration of the evidence, arguments and briefs, the trial court found:

. . the real estate above described and claimed as a homestead by Mrs. L. W. Shannon was chiefly valuable and mostly used by her for business purposes; that Mrs. L. W. Shannon was not and is not the head of a family and said real estate is not the homestead of Mrs. L. W. Shannon; and that said motions should be overruled.”

We shall consider, first, the finding pertaining to the homestead character of the property. If the evidence sustains that finding, it will, of course, be unnecessary to determine whether defendant was the -head of a family. Plaintiffs having offered no evidence, we are not confronted with the problem of conflicting testimony. Does the evidence on behalf of defendant, together with reasonable inferences which might properly be drawn therefrom, support the finding of fact, to wit: “the real estate above described and claimed as a homestead by Mrs. L. W. Shannon, was chiefly valuable and mostly used by her for business purposes.” It will be observed this statement in fact embraces two separate and distinct elements. The first is that the building was chiefly valuable for business purposes. The second is that it was mostly used for business purposes. Do these elements, or either of them, if supported by substantial evidence, affect the homestead character of the property?

In substance, the testimony of the defendant, Mrs. Shannon, was: She was the widow of Dr. L. W. Shannon, deceased; they had no children of their own; Doctor Shannon died December 3, 1931; prior to his death they had not occupied any part of the theater building as a homestead, but had lived in a residence property on [706]*706Shawnee street in the city of Hiawatha for about twenty-eight or twenty-nine years; the doctor’s office in the theater building had consisted of four rooms; in the month of May, 1933, defendant decided to move from the residence on Shawnee street into the office rooms formerly occupied by her husband in the theater building, and at that time had her trunk, some dishes and some clothing moved to the theater; a nephew by the name of John Voenida had come to live in her home on Shawnee street in December, 1932 (one year after her husband’s death), and defendant had his.bed moved into a room on the second floor of the theater building when she first moved some of her belongings into the theater building; they had slept in the theater building since July 27, 1933; there was a mortgage on the residence property, and she tried to get a government loan to take up the mortgage, but was unsuccessful; she designated the residence property as her homestead; she thought the application for the loan was made at a time when she still had most of her things in the residence property; in addition to the four office rooms occupied by defendant she used one room for the storage of her husband’s X-ray equipment, and had moved some of her belongings into the east end of the basement under the lobby part of the theater; one furnace heated the entire building, and the thermostat was located in her rooms; the theater building is approximately 140 feet long and 50 feet wide; it is a two-story building; the first floor is rented for theater purposes and the operator of the theater subleased the southwest part of the first floor to Pete Harnack, in which the latter operated a candy kitchen; the portion of the basement under the candy kitchen is occupied by Pete Harnack; there is a lobby east of the candy kitchen and a front stairway separates the theater on the east from the candy kitchen on the west; there is a foyer between the candy kitchen and the theater; from it a stairway leads to the second floor; the second story extended back about one-half the distance of the first story; the second floor contained one large room and two smaller ones, which were rented to an operator of a beauty parlor; there is an entrance to the rear of the second story and a stairway to the alley.

The witness, Patton, secretary of the Hiawatha Savings and Loan Association, called as a witness by defendant, testified in substance: The association held a mortgage on the theater building, which mortgage had been reduced to about $20,400 or $20,600, and there were delinquent taxes on the building in the sum of about $340; [709]*709the $300 monthly rental from the theater had been assigned by defendant to the association and the association applied about one-half of that amount on the mortgage and interest, about $50 of it went to the defendant, and the balance was used for heating the building, taxes, insurance and upkeep.

[707]

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Anderson v. Shannon, 73 P.2d 5, 146 Kan. 704, 114 A.L.R. 200, 1937 Kan. LEXIS 45 (kan 1937).

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