Bishop v. Simpson
| Decision Date | 01 May 1928 |
| Citation | 224 Ky. 289,6 S.W.2d 253 |
| Parties | BISHOP v. SIMPSON et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Nelson County.
Action by S. S. Bishop against Stanley Simpson and another. Judgment for defendants, and plaintiff appeals. Affirmed.
Atkinson & Nichols, of Bardstown, for appellant.
J Smith Barlow, of Bardstown, for appellees.
Stanley Simpson owned a farm in Nelson county, on which he resided containing 136 acres. He mortgaged this farm to the Federal Land Bank, and afterwards executed a mortgage on it to S. S Bishop. After this, he bought a tract of 8 1/2 acres about 200 yards from his 136-acre tract, and on the other side of the road from it. He used both tracts as his home; his family consisting of his wife, a son, and a daughter. Bishop brought suit to foreclose his mortgage on the 136-acre tract; the land was ordered sold, and Bishop bought the land, subject to the mortgage of the Federal Land Bank, for $25. He took out execution upon his personal judgment. There was a small house on the 8 1/2-acre tract, and, after Simpson was dispossessed of the 136-acre tract, Bishop had the execution levied on the 8 1/2 acres. He then brought suit to enforce his lien on the 8 1/2-acre tract. Simpson did not answer, but his wife filed answer, showing that he had declined to answer, and was in a bad nervous condition. She set up that the 8 1/2-acre tract was the home of the family, and had been used in connection with the 136 acres as the home of the family since it was purchased. She prayed that it be adjudged exempt as a homestead. The court allowed the answer filed, and, after hearing proof, adjudged the land to be exempt as a homestead. Bishop appeals.
The court correctly allowed the wife to file the answer. The husband was on bad terms with his wife; an action for divorce was pending; he was, in fact, in a very bad nervous condition. Subsection 3, § 34, of the Civil Code, provides as follows as to a wife:
"She may defend an action against her and her husband for herself, and for him also if he fail to defend."
Under this section it has been held in cases like this that the wife may answer and set up the homestead exemption where the husband fails or refuses to do so. Hemphill v. Hass, Lyons & Co., 88 Ky. 492, 11 S.W. 510, 11 Ky. Law Rep. 62; Purdy v. Melton, 164 Ky. 749, 176 S.W. 346; Daisy v. Houlihan, 43 S.W. 487, 19 Ky. Law Rep. 1337; Frazier v. Brashears, 66 S.W. 1038, 23 Ky. Law Rep. 2232. The reason for the rule is thus stated in the case first above cited:
"The homestead exemption was manifestly intended by the Legislature as well for the protection and benefit of the wife and infant children, as of the husband, and she has an interest or estate in the homestead that not only survives to her after his death, but that cannot be mortgaged, released, or waived by him without her consent expressed in the solemn form required to divest her of the absolute title."
The homestead statute is for the benefit of the family. Its purpose is to guarantee to the family the protection and benefits intended by its enactment. The wife is...
To continue reading
Request your trial
-
Lear v. Lear
...cannot be had by the party that has abandoned it, and he relies upon Charboneau v. Hart, 211 Ky. 204, 277 S.W. 242, and Bishop v. Simpson, 224 Ky. 289, 6 S.W. (2d) 253. In Charboneau v. Hart, the appellee and his first wife jointly owned a tract of land worth less than $1,000. After his wif......
-
Lear v. Lear
...cannot be had by the party that has abandoned it, and he relies upon Charboneau v. Hart, 211 Ky. 204, 277 S.W. 242, and Bishop v. Simpson, 224 Ky. 289, 6 S.W.2d 253. Charboneau v. Hart, the appellee and his first wife jointly owned a tract of land worth less than $1,000. After his wife's de......
- Reed v. Nelson Creek Coal Co.