Kansas Loan & Trust Co. v. Phelps & Bigelow Windmill Co.

54 P. 136, 7 Kan. App. 469, 1898 Kan. App. LEXIS 354

• Court: Court of Appeals of Kansas
• Decided: August 18, 1898
• Docket: Nos. 169 and 281
• Status: Published

Opinion

The opinion of the court was delivered by

Dennison, P. J. :

In these cases the attorneys for plaintiffs in error state in their brief that but two questions are to be determined by us : (1) Is a judgment rendered upon the foreclosure of a mechanic’s lien against the homestead of the defendant void when his wife is not a party to the judgment ? (2) If void, who can plead it ?

Section 9 of article 15 of the constitution of Kansas provides, that no property shall be exempt from sale for the payment of obligations contracted for the erection of improvements thereon.

The most that can be said in favor of the plaintiff in error is that the wife has an interest in the premises and that her interest has not been foreclosed.

Judgment has been rendered against the husband, and his interest in the land has been ordered sold to satisfy the lien of the defendant in error. We see no error in this.

The judgment of the district court is affirmed.