Shattuck v. Weaver

101 P. 649, 80 Kan. 82, 1909 Kan. LEXIS 17

• Court: Supreme Court of Kansas
• Decided: April 10, 1909
• Docket: No. 15,922
• Status: Published

Opinion

Per Curiam:

That the plaintiff constituted the family of his deceased wife is settled by Weaver v. Bank, 76 Kan. 540, overruling Ellinger v. Thomas, 64 Kan. 180. (See, also, Cross v. Benson, 68 Kan. 495.)

That temporary absence will not defeat the homestead right is settled by cases too numerous to need citation. That during the temporary absence of the owner premises may be rented without destroying their homestead character has been settled ever since the decision in Hixon v. George, 18 Kan. 253. (See, also, National Bank v. Warner, 22 Kan. 537; Garlinghouse v. Mulvane, 40 Kan. 428, 431; Shirack v. Shirack, 44 Kan. 653, 656; Deering v. Beard, 48 Kan. 16, 19; Pitney v. Eldridge, 58 Kan. 215; Upton v. Coxen, 60 Kan. 1; Bebb v. Crowe, 39 Kan. 342; Hoffman v. Hill, 47 Kan. 611.) These decisions, and particularly Deering v. Beard, Pitney v. Eldridge and Upton v. Coxen, dispose of the arguments relating to present right of possession and two homesteads in one tract. Besides, the creditor has.no license to claim a homestead for the tenant in this case.

The facts being agreed to, burden of proof is not material. The' question is purely one of law — what shall the judgment be? The parties stipulated how the agreed statemént .of facts should be interpreted:

“The said plaintiff has never abandoned or relinquished his residence upon said lots on said Mona avenue, unless by reason or by virtue of the facts herein-before set forth.”

The agreed facts show a removal for a temporary purpose. They do not include an intention not- to return.

The judgment of the district court is affirmed.