Cunningham v. Marshall

Rose, J. This is a suit in equity to establish homestead rights in 240 acres of land in Lancaster county. The trial court dismissed the case after a full hearing, and plaintiffs have appealed. Felix Cunningham, a married man, held the legal title [303] to the land, and, describing himself as a single man, deeded it to Frank McKelvie, May 5, 1897. For full value the latter deeded the land to Joseph H. Marshall, who willed it to defendant, his wife. He died June 15, 1907. Felix Cunningham is dead. Four of his five children are plaintiffs. His wife was divorced, and is not a party to this action. During the time covered by the asserted acquisition and occupancy of the homestead pleaded, the wife and all of the children, except the oldest son, lived in New York, and never saw the premises in controversy. A fair interpretation of all of the evidence leads inevitably to the conclusion that neither the father nor his oldest son ever acquired, occupied or claimed, when in possession, a homestead in the land, within the meaning of the homestead law. An analysis of the evidence upon which this conclusion rests would neither benefit the parties nor make an addition to the law, and will not be attempted. For failure to establish this material fact, the case of plaintiffs entirely fails. The decree conforms not only to the law, but to the demands of equity. Affirmed. Reese, C. J., Letton and Fawcett, JJ., not sitting.