Brooks v. Collins

• Decision Date: 14 January 1876
• Parties: Brooks, & c. v. Collins.
• Court: Kentucky Court of Appeals

74 Ky. 622

Brooks, & c. v. Collins.

Court of Appeals of Kentucky.

January 14, 1876

APPEAL FROM BOONE CIRCUIT COURT.

D. A GLENN, For Appellants,

CITED

General Statutes, sec. 9, p. 433; sec. 14, p. 434.

6 Bush 111, McMurray v. Shuck.

1 N Bank. Rep. 414, In re Cobb.

3 N Bank. Rep. 158, In re Taylor.

9 Bush, 74, Gasaway v. Woods.

11 Bush, Eustache v. Rodaquest.

J. M. COLLINS, For Appellee,

CITED

Myers's Supp. p. 715.

General Statutes, chap. 38, art. 13, secs. 14, 15, p. 434.

1 Bush, 110, Anthony & Co. v. Wade.

6 Bush, 448, Thorn v. Darlington.

6 Bush, 111, McMurray v. Shuck.

2 Duvall, 256, Mulliken v. Winter.

7 B. Mon, 586, Collett v. Jones.

15 B. Mon. 453, Gunn v. Gudehus.

OPINION

PRYOR JUDGE:

The appellee filed his petition in equity in the Boone Circuit Court, alleging that he had recovered a judgment at law against the appellant, Sidney Brooks, for one hundred and forty-one dollars, with interest from the 4th of February, 1869, and costs; that an execution issued on the judgment, and was returned by the officer in whose hands it was placed for collection " no property found; " that the appellant, being the owner in fee-simple of a house and lot in the town of Walton, on the 30th of October, 1870, conveyed a portion of said lot, for the nominal consideration of one dollar, to her two children, Alice Fishback and J. L. Brooks.

His debt at the time of the conveyance being a subsisting debt, and the appellant owning no other estate, he asked the chancellor to subject this fraction of the lot conveyed to the children, as well as the lot upon which the appellant lived, to the payment of his debt.

The defendants answered, denying all fraud, and alleging that the whole lot was not at any time worth exceeding one thousand dollars, and therefore not subject to appellee's debt or to levy and sale under his execution, the appellant being a housekeeper with a family, and living upon the property as owner at the time the petition was filed and for more than twenty years prior thereto.

The appellee amended his petition, stating that since the institution of his action a part of appellant's lot had been condemned by the Cincinnati Southern Railroad Co. for a part of its road-bed, and the appellant had been allowed one hundred and sixty dollars in damages that was then due her by the company, and asked that this fund be attached and the money paid over to him in satisfaction of his debt.

This money was paid into court, and upon the final hearing of the case the court adjudged that the appellant was not a bona fide housekeeper with a family, and directed the money paid into court by the railroad company to be paid to the appellee, and thereupon he received the same in full satisfaction of his debt.

It appears from the evidence that Mrs. Brooks was the owner of the house and lot of ground, and had been in the actual possession of it for more than twenty years, and was living upon it with her family at the time the judgment for the debt was rendered and at the filing of the present action. The proof also indicates clearly that the whole property, including the part of the lot conveyed to her children, and adding to it the debt due by the railroad company, would not exceed in value seven or eight hundred dollars. The husband of the appellant had been dead for many years. They had five children, all of whom were born during the period the appellant owned and was in the possession of the house and lot in controversy. Four of the children are now living, and all of age; two of them were living with appellant at the institution of the action, and one, Alice, a widow, made her mother's home her residence after this action had been brought.

These children were all of age when the appellee obtained his original judgment, and for that reason it is argued the appellant was not a housekeeper with a family within the spirit and meaning of the law exempting homesteads from sale under execution.

Counsel for the appellee maintains that the cases of Thorn against Darlington and McMurray against Shuck, reported in 6 Bush, settle this question, and sustain the judgment of the court below.

In the case of Thorn v. Darlington the husband, for the benefit of his family, asserted his claim to a homestead as against the mortgagee, for the reason that his wife had not united in the mortgage.

In applying the law to the facts of that case the court held that the leading object of the statutory exemption was " to secure to the wives and children of debtors humble homes against disturbance of families by creditors; " and the wife, having failed to unite with the husband in the mortgage, he was entitled to a homestead. If the husband had owned this lot instead of the wife, and left her in possession without children, she would have been entitled to a homestead as against the husband's creditors. So that the statute was intended to secure a home for the wife of the debtor as well as the children. It is unnecessary, however to pursue this...