
    O. S. Hurd v. G. C. Hixon & Co., et al.
    
    1. Homestead; Improvements. There is no homestead exemption as against obligations contracted for the erection of improvements thereon.
    2. Improvements on Homestead, a Lien. A judgment rendered upon an obligation contracted for the erection of improvements on a homestead is a lien on all the real estate of the judgment debtor, including the homestead, and if there be no personal property, such homestead may be sold to satisfy the judgment.
    3. --Such a lien is not satisfied or discharged by the sale of the-homestead by the judgment debtor to a purchaser buying it for a valuable consideration.
    4. Homestead; Judgment Lien for Improvements; Notice. A purchaser' buying a homestead subject to a judgment lien upon it for an obligation contracted for the erection of improvements thereon, takes the property subject to such lien, and if from the face of the judgment it does not appear that the obligation was for improvements on the premises, he must ascertain from the judgment creditor whether it was for such-improvements; otherwise he purchases at his peril.
    5. --In an action commenced by the purchaser of a homestead-subject to a judgment lien for improvements thereon, to restrain the judgment creditor from selling the premises to satisfy the judgment, the consideration for the judgment may be shown by testimony.
    
      Error from Atchison District Court.
    
    On February 1, 1881, Hurd commenced this action, to obtain an injunction restraining the defendants from selling the-following-described premises in Atchison county, to wit: The east twenty acres of the north seventy-two acres of the northwest quarter of section twenty-one, township six, range twenty. A temporary injunction was granted on the 7th day of February, 1881, by the probate judge of Atchison county,, the district judge being absent therefrom. The case was tried at the November Term, 1881, of the district court, by the court without a jury, and the following findings were-made and filed:
    “ 1. That in 1859 William M. Tilghman became the owner of the northwest one-fourth of section No. 21, in township No. 6, of'range No. 20, in Atchison county, state of Kansas; that he built a house on the southwest corner of said quarter in the year 1859} and immediately occupied it by himself and family, and continued to so occupy said house on said quarter-section as the homestead of himself and family until the fall of 1870.
    “2. In the summer of 1870, said Tilghman erected a house on the north 72 acres of said quarter, and in the fall of 1870 moved into it with his family, where he continued to reside with his family, and occupy and use said premises as a homestead for himself and family until on or about November 6, 1878, when the house on said premises was destroyed by fire, and immediately thereafter said Tilghman and his family moved to the city of Atchison.
    “3. About the time said Tilghman and his family moved into the house on the north 72 acres of said quarter-section, he had sold and disposed of all his other real estate.
    “4. That on the 11th day of February, 1878, William M. Tilghman conveyed said 72 acres to his wife, Amanda Tilghman, by warranty deed, duly .executed and acknowledged; but there was no money consideration for said deed.
    
      “ 5. That on the 15th day of November, 1880, said Amanda Tilghman and William M. Tilghman, her husband, upon sufficient consideration therefor paid, conveyed said premises by good and sufficient warranty deed to the plaintiff, O. S. Hurd.
    “ 6. On December 9th, 1873, defendants Gr. C. Hixon & Co. filed a transcript of a judgment from the docket of a justice of the peace of Atchison city, Atchison county, state of Kansas, in the office of the clerk of said county, which was by said clerk duly entered as required by law, and upon which executions were duly issued as follows: December 9,1873, October 6, 1875, April 29, 1876, and Dec. —, 1880, each of which was returned unsatisfied in whole or in part, except the execution of date April 29, 1876, upon which there was collected the sum of fifteen dollars.
    
      “7. That the judgment of the justice was an ordinary judgment on a note and balance due on account; and did not contain any finding or intimation that the amount was for improvements on lands and real estate, nor did the bill of particulars filed before said justice by plaintiffs contain any allegation that the amount claimed was for improvements to real estate.
    “ 8. The abstract filed in the district court was an abstract of an ordinary judgment, and contained no statement of any kind that would give any intimation that the judgment was for improvements on real estate.
    “9. None of the several executions issued as above stated was ever levied on this real estate, except the one of date December —, 1880.
    “ 10. It appeared from oral testimony introduced at the trial, that the consideration of 'the note and account sued on before the justice was for lumber which was used in the erection of the house on the north seventy-two acres of said quarter-section above described.
    “11. The court finds that said defendants, G. C. Hixon & Co., acquired a lien on the above-described seventy-two acres, by reason pf the filing of said abstract of judgment in the office of the clerk of the district court, December 9, 1873.
    “12. That said "William M. Tilghman, in the summer and fall of 1870, and in the spring of 1871, purchased of the defendants the lumber and material used in the erection of said house, upon said north seventy-two acres, and on the 1st day of January, 1871, said Tilghman executed his note to the defendants for so much as was then due to them, on account of the lumber and material so purchased and used by him in the erection of said house.
    “13. That said defendants afterward obtained a judgment upon said note, and upon the balance due for lumber so purchased in the spring of 1871, before a justice of the peace in and for the city of Atchison, in the county of Atchison and state of Kansas, which judgment is in full force.
    “14. That said judgment was upon obligations of said William M. Tilghman, contracted for the erection of improvements upon the twenty acres of land levied upon by the defendant sheriff in this action.
    “15. That the judgment, a transcript of which was so filed in the office of the clerk of the district court, as stated in finding of fact No. 6, was the same judgment which had been so rendered by such justice of the peace, and stated in the findings of fact Nos. 13 and 14, and was the same judgment mentioned in the petition of the plaintiff in this action.
    “16. That the execution issued December — , 1880, was issued' out of the office of the clerk of said district court, upon the transcript of said judgment, and was levied upon the east 20 acres of said north 72 acres, by the defendant sheriff, who had had such 20 acres duly appraised, and had advertised the same for sale, and was about to sell the same at sheriff’s sale when the temporary injunction was issued in this action.”
    CONCLUSION OP LAW.
    “That by the filing of the transcript of said justice’s judgment, in the office of the clerk of said district court of Atchison county, the defendants acquired a lien upon the land levied upon by the defendant sheriff, and that such judgment was a lien upon the land so levied upon at the date of the issuing of the last execution in December, 1880, and that the levy of said execution was not unlawful, but the same was legál and valid, and the temporary injunction issued in this action ought not to have been granted.”
    Plaintiff excepted, and brings the case here.
    
      Webb & Martin, for plaintiff in error.
    
      JET. M. Jackson, for defendants in error.
   The opinion of the court was delivered by

Hokton, C. J.:

The questions which aré presented for our determination in this case are: First, does a judgment in the district court upon a note, given by the defendant to the plaintiff for the erection of improvements on a homestead, not showing upon its face the consideration thereof, become a lien on such homestead so as to be enforceable against the real estate after it has passed into the hands of an innocent purchaser for a valuable consideration ? Second, can the consideration for a judgment rendered upon a promissory note executed for the erection of improvements on a homestead, be shown by testimony in a suit between the purchaser of such homestead and the holder of the judgment, to restrain the judgment creditor from selling the real estate in satisfaction of the judgment?

The constitution of our state expressly ordains that no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon. (Const., art. 15, §9; Comp. Laws 1879, ch. 38, §1. In Nichols v. Overacker, 16 Kas. 59, the court says, referring to this constitutional provision: “The spirit of that provision is, that no man shall enjoy property as a homestead, or an improvement thereon, as against the just claims of the person who procured it for him.” And following this interpretation of the constitution, it was held that there was no homestead-exemption law as against obligations contracted for the purchase-money. As to such obligations, the rule was held to be just the same as if no exemption law had ever been adopted, and that land held as a homestead was, with respect to such obligation, governed by just the same rules as if it were not a homestead. In Greeno v. Barnard, 18 Kas. 518, the court says: “A lien for purchase-money cannot be created on a homestead in any different manner than it can be created upon any other real estate. The homestead-exemption laws do not make any difference. Indeed there is no homestead-exemption law as against purchase-money. As to purchase-money, the homestead is just like any other real estate, and governed by the same rule as other real estate. A homestead may be sold on an execution for the purchase-money; but the judgment rendered for the purchase-money is no more a lien on the homestead than it is on any of the other real estate belonging to the judgment debtor. The debt for the purchase-money would not be a lien on any of the real estate of the judgment debtor until the judgment was rendered, and then the judgment would be a lien on all the real estate of the judgment debtor, including the homestead; and if there were no personal property, any of such real estate might be sold to satisfy the judgment.” An obligation for the erection of improvements upon a homestead stands upon the same basis as an obligation for the purchase-money, and the rule as to such obligations is just the same. To au obligation contracted for .the erection of improvements, the exemption law does not apply. And in all cases where a judgment is rendered upon an obligation for the erection of improvements upon a homestead, the judgment creditor, after exhausting the personal property of the judgment debtor subject to execution, may levy on the real estate so occupied as a homestead, and sell the same. Therefore it seems to us there can be no question but that if Tilghman and wife had continued to occupy the real estate as a homestead, upon which the improvements were erected, which are the consideration of the note originally sued upon, .such homestead would not have been exempt from sale to satisfy the judgment. As to an obligation for the erection of improvements on the land, the judgment is just the same as if no exemption law bad ever been adopted. When a judgment is rendered in the district court, it is a lien on all of the real estate of the judgment debtor within the county where the judgment is rendered, and the filing of a transcript of a judgment rendered by a justice of the peace in the district court gives the judgment of the justice the same force and effect as if rendered in the district court. It is not logical to say that the sale of a homestead by the owner thereof, with the judgment lien standing against it, satisfies the lien or releases it from the real estate. The purchaser takes it with the knowledge of the judgment against it, and he is bound at his peril to ascertain whether such judgment was rendered upon an obligation for the purchase-money, or for the. erection of improvements thereon. If rendered on obligations of this character, the judgment is a lien upon the real estate, regardless of its occupancy as a residence by the owner. As against the real estate, the judgment can be enforced whether the-judgment .debtor occupies it, or whether it is vacant, or whether it has been sold since the rendition of the judgment. From this we conclude that where a purchaser buys property, whether it be a homestead or otherwise, upon which a judgment creditor has a lien by virtue of his judgment, that he takes the property subject to such judgment lien; and in an action brought by the purchaser to obtain an injunction restraining the judgment creditor from enforcing his judgment, such creditor may offer testimony showing that the judgment was rendered upon an obligation contracted for the purchase of the premises or for the erection of improvements thereon, thereby showing that the property is not exempt from sale under the judgment.

In our consideration of this casé we have treated the note on which the original judgment was rendered before the justice as written evidence of the indebtedness of Tilghman for the material used in the erection of improvements upon the-homestead. There is not anything in the findings inconsistent with this view, and the judgment of the trial court is in harmony therewith. The general rule is, that the acceptance of a promissory note does not extinguish the original debt. (Kermeyer v. Newby, 14 Kas. 164.) It is but the written evidence of the debtor’s indebtedness. True, it may be accepted' in absolute payment if the parties so agree, and whether they so agreed or not is a question of fact. (Medberry v. Soper, 17 Kas. 369.) If the note originally sued on had been given or accepted as an absolute payment of the debt for the material furnished, then such debt would have been wholly discharged by the express agreement of the parties thereto, and the original consideration of the note of no' importance. A judgment rendered upon a promissory note taken in absolute payment of a debt for the erection of improvements on a homestead cannot be enforced against the homestead. The taking of a note under such circumstances would extinguish the original debt.

The judgment of the district court will be affirmed.

All the Justices concurring.  