Rush v. Gordon

38 Kan. 535

• Court: Supreme Court of Kansas
• Decided: January 15, 1888
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

The only question involved in this case is, whether certain real estate, less than one acre, and lying, within the incorporated city of Leavenworth, is the homestead of William Gordon and his family, so as to render it exempt from sale under a certain judgment in favor of H. L>. Rush and against Gordon. At the time when this judgment was rendered, and ever since, the property has been occupied by Gordon and his family. The upper stories of the main building situated on the property have all the time been occupied by Gordon and his wife and children as their residence, and access to and egress from the upper stories are by means of stairwáys through the first or lower story. All the heating apparatus for the entire building is located in the cellar, and the cellar is used in connection with the upper stories as a residence, not only for heating purposes, but also for storage, and the heat must pass from the cellar through the first or the lower story to the upper stories. The first or lower story and the cellar are also used by the wife for the purpose of carrying on a retail grocery and provision business. The entire real estate in controversy is used by the husband and wife in connection with their residence and the grocery and provision business; and there is nothing to prevent it from being a homestead within the meaning of the homestead-exemption laws, except that the wife keeps a grocery and provision store in the first or lower story, and makes use of the cellar and some other parts of the premises in connection therewith. We think the property is a homestead within the meaning of the homestead-exemption laws, and not subject to sale on judicial process. (Hogan v. Manners, 23 Kas. 551.)

The judgment of the court below will be affirmed.

All the Justices concurring.