Bennett v. Baird

• Decision Date: 18 January 1884
• Citation: 81 Ky. 554
• Parties: Bennett v. Baird.
• Court: Kentucky Court of Appeals

81 Ky. 554

Bennett v. Baird.

Court of Appeals of Kentucky.

January 18, 1884.

APPEAL FROM OHIO CIRCUIT COURT,

TOWNSEND & MASSIE FOR APPELLANT.

WALKER & HUBBARD FOR APPELLEE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

In September, 1880, a tract of land belonging to appellant, estimated to contain 156 acres, and valued by the appraisers at four hundred dollars, was sold under execution and purchased by appellee, Baird, at the sum of four hundred and ten dollars; and in October, 1880, appellant brought this action for the purpose of quashing the execution sale, but if that could not be done, then for the allotment of a homestead in the land to him.

We perceive no sufficient grounds for quashing the sale, and the only question, therefore, is whether appellant is entitled to the homestead claimed.

It appears that until about two years previous to the issue of the execution and sale under it of the tract of 156 acres, appellant owned another tract adjacent to it, containing about 144 acres, upon which his dwelling-house and appurtenances were situated, at which time he sold the latter tract to pay a mortgage debt he owed the purchaser, but continued to occupy the dwelling-house and a small part of the tract, as the tenant of his vendee, until about April, 1881, when he erected a small house upon the land in controversy, and removed to it with his dependent daughter, the only member of his family.

It is shown that appellant owned, occupied and used the two tracts of land as one farm for many years previous to the sale of the tract of 144 acres, portions of each being in the same inclosure. In fact, it does not appear that they were ever bounded and distinguished as two separate tracts at all until the mortgage and sale by him of the tract of 144 acres.

It is farther shown that, though occupying the dwelling-house upon the last named tract after he had sold it, appellant continued, as he had before done, to hold, control, and use for the support of himself and family, the tract of 156 acres, being the only land owned by him, until it was sold.

The question, as thus presented, is whether all the other conditions prescribed by law for the exemption of a debtor's land from enforced sale, existing, appellant has forfeited or lost his homestead right in the land because there was no dwelling-house thereon at the time it was levied on and sold.

The language of section 9, article 14, chapter 38, General Statutes, is that "there shall be exempt from sale, under...