
    M. G. Miller et al. v. Elvira D. Stuck et al.
    
    No. 13,727.
    (77 Pac. 552.)
    SYLLABUS BY THE COURT.
    Homestead and Exemptions—Action by Heirs against Creditors to Quiet Title. A defendant in an action by heirs to quiet their title is not prejudiced by a judgment that bars him from claiming an interest in the premises so long as they are occupied and impressed with a homestead character, when he, as a creditor of the •estate, is asserting no interest therein while that condition continues.
    Error from Johnson district court; W. H. Sheldon, judge.
    Opinion filed July 7, 1904.
    Affirmed.
    
      J. W. Parker, for plaintiffs in error.
    
      C. B. Little, John T. Little, H. L. Burgess, I. 0. Pickering, and James P. Hindman, for defendants in error..
   The opinion of the court was delivered by

Atkinson, J. :

In the year 1888 Isaac C. Stuck died intestate, owning and occupying as a homestead the land in controversy, situated in Johnson county, a tract containing 160 acres. He left, as his only heirs, a widow, Elvira D. Stuck, and seven children, four of them minors, the oldest four being children by a former wife. The widow was appointed administratrix, and the claims of creditors were presented and allowed against the estate by the probate court. The administratrix sold the personal property, the proceeds, after the payment of the expense of administration, being sufficient to pay only 22\ per cent, on claims of the fifth class. There was no real estate but the homestead. The administratrix made final settlement and was discharged in December, 1891. Some of the children, upon attaining their majority, sold and executed deeds of conveyance to their respective interests in the premises. The widow and those of the children who had not sold their interests therein made several attempts to do so. Upon each occasion when there had been found a purchaser for their interests, one or more of the creditors whose claims had been allowed against the estate, by claiming an interest, present or prospective, in the premises, as a creditor of the estate, would defeat the sale.

This action was brought by the widow and the children still owning interests in the premises, and by the grantees of the children who had conveyed their interests, who were joined as plaintiffs, against the creditors of the estate whose claims had been allowed by the probate court as demands of the fifth class, to quiet the title of plaintiffs against the claims of such creditors. The court rendered judgment for plaintiffs, and defendants bring error.

It was claimed by plaintiffs that the premises had continued to be occupied by the widow and minor children and were impressed with the homestead character, and for that reason defendants had no interests therein and could acquire none; and that, if the premises had ceased to be impressed with the homestead character, defendants could have had no claim therein or lien thereon for the reason that the demand of each of the defendants against the estate had become barred by the statute of limitations. Each of the defendant creditors who asserted an interest in his answer expressly denied a present interest in the premises, or a right to enforce his claim against the premises at that time. It was urged by defendants that plaintiffs could not maintain an action to quiet title; that if plaintiffs were entitled to maintain such action, it could only be for such time as the widow and minor children continued to occupy the premises and the premises continued impressed with the homestead character ; that the widow and minor heirs were likely to abandon the premises at any time ; that the plaintiffs who were grantees of the heirs were never in the occupancy of the premises and could not maintain an action to quiet title against defendants ; that if the claims of defendants were barred by the statute of limitations, then, before plaintiffs could ask equity, they must do equity, and discharge the demands of defendants. The court made findings of fact and conclusions of law, finding that the premises in controversy had been occupied by the widow and her minor children at the time of the commencement of the action ; that, as to the widow and minor children, the premises were impressed with the homestead character; that the premises had never been abandoned as a homestead ; that the interests of the plaintiffs and defendants claiming by deeds of conveyance from the heirs of Isaac C. Stuck, deceased, were acquired while the . premises were impressed with the homestead character. The judgment barred the defendants claiming as judgment creditors of the estate “from setting up or claiming any right, title or interest of, in or to said lands herein, as long as the same shall be occu.pied as, and impressed with the character of, a homestead.”

If the defendants claiming as creditors of the estate had, as claimed by each in his answer, a prospective interest in the tract in controversy, and whether they had or not we do not here determine, they were not prejudiced by the judgment of the trial court. Each , in his answer expressly denied a present interest in the premises, or a right to enforce his claim against the premises at the time of filing such answer. The judgment of the court barred each of the defendant creditors from setting up or claiming any rights in the premises so long as they should be impressed with the homestead character and so occupied. It is apparent that the defendants, in their claims against the premises, if any they had, were not prejudiced by the judgment rendered, and hence the errors assigned become unimportant and will not be discussed.

The judgment of the court below is affirmed.

All the Justices concurring.  