Cincinnati Leaf Tobacco Warehouse Co. v. Thompson

• Citation: 105 Ky. 627
• Parties: Cincinnati Leaf Tobacco Warehouse Co. v. Thompson.
• Decision Date: 10 February 1899
• Court: Court of Appeals of Kentucky

Page 627

105 Ky. 627

Cincinnati Leaf Tobacco Warehouse Co. v. Thompson.

Court of Appeals of Kentucky.

February 10, 1899.

APPEAL FROM HARRISON CIRCUIT COURT.

BLANTON & BERRY FOR THE APPELLANT.

SWINFORD & OSBORNE, FOR THE APPELLEE.

SWINFORD & OSBORNE, IN A PETITION FOR A REHEARING.

JUDGE WHITE DELIVERED THE OPINION OF THE COURT.

In 1895, appellee, T. L. Thompson, being insolvent, assigned all his estate, real and personal, for the benefit of his creditors, reserving to himself all the property exempt to him as a housekeeper with a family. The Harrison County Court, at the September term, 1895, appointed three persons to allot to appellee his exemptions, including homestead in a farm near Cynthiana, containing about 250 acres. These commissioners allotted to appellee, Thompson, 26.1 acres, including the dwelling house and barn. To this report, appellant, a creditor of appellee, filed exceptions, which were overruled by the judgment of the county court. Appellant appealed to the circuit court, and, upon trial there before the court without a jury, the exceptions were again overruled, and the report of allotment confirmed. From that judgment, this appeal is prosecuted.

The exceptions to the report of allotment are (1) that the amount of real estate allotted is worth more than $1,000; (2) a denial that appellee is entitled to a homestead by reason of the fact that he is a resident of Cynthiana, three or four miles from the farm, and did not live, nor had for several years lived, on the farm, but, on the contrary, had several years before abandoned the farm as a home.

These questions of fact presented by the exceptions were submitted to the court without a jury and by the well-established rule of this court his findings are treated as the verdict of a properly instructed jury.

The testimony introduced on the trial shows that Thompson had lived on the farm, and had acquired a homestead right therein; that he moved to Cynthiana for the purpose of sending his daughter to school; the farm was rented on shares, appellee furnishing everything, and receiving two-thirds of the crop as rent; that the tenant did not have possession of two rooms of the house; that in those two rooms were some household goods of appellee that he did not care to move to town with him; that he had repeatedly expressed his intention to return to the farm as soon as his daughter finished at school; that he had declined to buy property in Cynthiana for the reason, as stated, that h...