Brannon v. Bohannon

• Decision Date: 02 October 1936
• Citation: 265 Ky. 394
• Parties: Brannon et al. v. Bohannon.
• Court: United States State Supreme Court — District of Kentucky

265 Ky. 394

Brannon et al. v. Bohannon.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

Decided October 2, 1936.

1. Appeal and Error. — In reviewing judgment sustaining demurrer to petition, allegations of petition are to be taken as confessed.

2. Homestead. — In absence of constitutional or statutory prohibition, owner of homestead may sell or encumber it with like effect as if property had not been set apart as homestead.

3. Homestead. — Husband, after his abandonment of wife, had legal right to voluntarily sell and alienate homestead property owned

by him without his wife's joining in conveyance (Ky. Stats., secs. 1702, 1706).

Appeal from Jefferson Circuit Court.

WILLIAM G. DEARING for appellants.

DODD & DODD for appellee.

OPINION OF THE COURT BY JUDGE PERRY.

Affirming.

This appeal presents the question of a wife's right of homestead in the residence property of her husband which they, as husband and wife, had lived in and occupied together as such until his abandonment of her. Following this, the husband made a voluntary alienation of the property to one Isaac Mills, who in turn sold and conveyed the same to the appellee, Minnie Bohannon.

The wife having continued to claim and occupy the property as a homestead after her husband's abandonment of her and alienation of the property, and refusing to surrender its possession to purchaser, the latter instituted a forcible detainer suit in the magistrate's court to eject her, upon the trial of which a writ of restitution was granted her. Thereupon appellant instituted this suit in the chancery branch of the Jefferson circuit court, seeking to enjoin the enforcement of the writ dispossessing her.

By her petition and petitions as amended, she alleged that she and Howard H. Brannon were married about October 15, 1935, after which they had lived together in the house (described in the petition) and occupied it as a homestead until about the last of January, 1936, when he had abandoned her, and after which she continued to live in the house and occupy same as a homestead. Further, she alleged that, after her husband's abandonment of her, he entered into a conspiracy with Isaac Mills to sell and convey him his homestead property, and pursuant thereto they secured a notary public, whose term of office, she alleged, had then expired, to take his acknowledgment to the deed and to date the certificate back prior to the time of their marriage; that this deed of conveyance to Mills, notwithstanding its false recital as to the date of conveyance and recordation, was fraudulently made without her knowledge and consent and without a waiver of her homestead rights, by joining therein, after his marriage with and abandonment of her.

Further plaintiff alleged that thereafter, in March, 1936, the said Mills and wife, by their duly executed deed, conveyed the said property to the appellee, Minnie G. Bohannon, which deed was also duly put to record.

To plaintiff's petition and amended petitions defendant purchaser and grantee of the homestead property (here the appellee) filed demurrers pending plaintiff's motion for an injunction, which the court sustained and dismissed plaintiff's petition.

For reversal of this ruling, this appeal is prosecuted.

The one question thus decided by the trial court, and now before us for decision, is whether or not the husband, after his abandonment of plaintiff, had the legal right to voluntarily sell and alienate this homestead property owned by him without his wife's joining in the conveyance.

No right of creditors or question of coercive sale of the property is here involved. Also the material allegations of plaintiff's petitions are to be taken as confessed for the purposes of the demurrers filed thereto and sustained by the court.

A proper determination of this question calls, first, for a consideration of what is the nature and character of the wife's homestead right.

The origin and character of homestead is thus stated in a very comprehensive annotation upon this subject in 45 A.L.R. 395:

"The right or privilege commonly known as a homestead estate does not exist at common law, and is purely a statutory or constitutional creation, its nature and extent depending on the law creating it."

Further, section 2, 13 R.C.L. 540, dealing with this subject, says:

"The word `homestead' has both a popular and a legal signification. While the term is nearly as old as the English language, its use in a legal sense is quite modern, and is peculiarly American. As used in the various statutes, the word `homestead' may be defined as meaning not only the property — the real estate — occupied as a home, but also the right to have it exempted from levy and forced sale. In this sense, a homestead is the land not exceeding the prescribed amount, upon which is the dwelling house, or residence, or habitation, or abode of the owner thereof and of his family; and includes the dwelling house as an indispensable part. * * * A homestead as importing an exemption, is constituted by the two acts of selection and residence, in compliance with the terms of the law conferring it, and when these exist in good faith, the essential elements of the homestead right exist, of which the persons entitled to it cannot be divested by acts or influences beyond their volition."

In section 3, following, it is said:

"Two essentially different theories obtain with reference to the nature of the homestead exemption. One line of cases [to which our own belong] holds that the homestead right cannot, in an absolute sense, be said to be an estate in the land; that the law creates none and leaves the fee as it was before, but in substance declares that the right of occupancy shall not be disturbed while the homestead character exists. * * * According to this view the homestead is, in effect, a mere privilege secured to the debtor and his wife by the statute, to hold and enjoy the property and have it descend as appointed thereby, free of the claims of creditors, unless there is a waiver of rights. * * * It is a right additional to and independent of the ordinary right of ownership. It is an additional tenure as conferred by the law. Other authorities, however, [construing their own particular homestead statutes] take the view that the homestead exemption is an estate in land and not merely an exemption or privilege. Under this view, when the interest of the homesteader does not exceed in value the statutory limit, the homestead estate comprises his entire title, leaving no interest to which liens can attach or which he can convey separately."

It is recognized as in harmony with both views that, "in the absence of constitutional or statutory prohibition, the owner of the homestead may sell or encumber it with like effect as if the property had not been set apart as a homestead"; that is, that this power of alienation is not derived from statutes relating to the alienation of homesteads, but exists as an incident of ownership of the property independently of the homestead law, and any direction and prohibitions of said statute as to alienations are mere restrictions on this antecedent power. 13 R.C.L. sec. 80, p. 621.

Section 1702, Kentucky Statutes, creating a homestead provides as follows:

"In addition to the personal property exempted by this article, there shall, on all debts or liabilities created or incurred after the first day of June, one thousand eight...