Campbell v. Potter

• Decision Date: 18 January 1895
• Citation: 29 S.W. 139
• Parties: CAMPBELL et al. v. POTTER.
• Court: Kentucky Court of Appeals

29 S.W. 139

CAMPBELL et al. v. POTTER.

Court of Appeals of Kentucky.

January 18, 1895

Appeal from circuit court, Warren county.

"Not to be officially reported."

Action between Ephraim Potter and D. B. Campbell and others. From a judgment for the former, the latter appeal. Affirmed.

Clark &amp Clark, for appellants.

W. E Garth, for appellee.

PAYNTER J.

Some time between the years of 1869 and 1871 the appellee, Ephraim Potter, purchased the house and lot in controversy, which is situated near the fair grounds in Bowling Green, and in 1872 moved on it with his family, and so remained on it, claiming it as his homestead, until the middle of November, 1890, when he leased it to another, but the possession to be restored to him whenever he desired it. On the property W. G. Daugherty held a mortgage lien for something over $100, including interest. In the fall of 1891 the appellant and one Oliver had executions issued on judgments which they held against the appellee; had them levied on the house and lot; and on the 23d of November, 1891, the property was sold to satisfy the executions. The appellant became the purchaser. The property is worth less than $1,000. There being a mortgage lien on the property, he instituted this action to have his supposed lien under his purchase satisfied by a sale of the property. The Campbell and Oliver debts did not exist prior to appellee's purchase of his homestead and the erection of improvements thereon. Appellee was not living on the property at the date of the levy and sale under the executions, and was not when this suit was brought.

The sole question in the case is as to whether or not the appellee's residence was permanently or temporarily located elsewhere when the levy and sale took place. If permanent, the sale under the executions was valid, if temporary, then the sale was void, because appellee's homestead right in the property could not be affected thereby. The proof shows that about the middle of November 1890, appellee, with his family, moved to another part of the city, for the purpose of boarding students who were attending the Cumberland Presbyterian Colored School. This was to continue until about the 1st of May following. After the school closed, those in charge made an arrangement with appellee to remain on the property for seven months longer which he did. After leaving this property, at the earnest solicitation of a son, who had lost his wife, leaving seven small children to be cared for, appellee his wife went to live with him. The appellee expected to return to his property (being all he had) the spring following his departure from it, and constantly expressed a purpose to return to it. The proof is satisfactory that...