In re Tertelling

23 F. Cas. 861, 12 Dill. 339

• Court: U.S. Circuit Court for the District of Kansas
• Decided: July 1, 1872
• Status: Published

Opinion

DILLON, Circuit Judge.

The bankrupt act exempts property to an amount not exceeding that allowed by state exemption laws in force in the year 1864 (section 14). The constitution of the state of Kansas in force in 1864, as well as at the present time, provides: “That a homestead to the extent of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law.” Article 15, § 9. The correctness of the facts found by the register is not disputed, and that the bankrupt is entitled to a homestead exemption in the brewery building, so called, is admitted. The question is whether the court below was right in dividing the same building into two portions, the one portion being considered a homestead, and exempt, and the remainder not a homestead, and thererore subject to execution and forced sale. The constitutional provision respecting the homestead exemption is exceedingly liberal to the debt- or; but it mayadmit of somedoubt whether it is just towards the creditor. The quantity of land exempted is limited, but there is no limitation on the value of the land exempted, or the value of the (homestead) improvements thereon. If the building is occupied as a residence by the family of the owner it is exempt, whatever its value. The building now in question was thus occupied, and it is all exempt, though a portion of it may have been devoted to other uses. We do not decide that in addition to the house occupied as a homestead and separate from it, the owner could erect upon the acre upon which his residence is situated a block of stores, or a brewery building (not occupied by the family as a home), and bold it as exempt. No such case is before us. We only hold that the whole house occupied as a home is exempt, though a portion of it may be used, and may have been constructed with a view to be used for other purposes. We have examined the cases referred to by counsel, arising under the homestead legislation of other states. These turn upon special statute provisions, and afford little aid in construing the constitutional exemption in this state. We are of opinion, upon the facts reported by the register, that the entire building is exempt from forced sale.

The order of the district court is reversed. .Reversed.