Cooper v. Arnett

• Decision Date: 26 May 1894
• Citation: 26 S.W. 811,95 Ky. 603
• Parties: COOPER v. ARNETT et al.
• Court: Kentucky Court of Appeals

26 S.W. 811

95 Ky. 603

COOPER v. ARNETT et al.

Court of Appeals of Kentucky.

May 26, 1894

Appeal from circuit court, Hopkins county.

"To be officially reported."

Suit by J. W. Cooper against V. L. Arnett and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.

Montgomery Merritt, for appellant.

Waddill & Nunn and C.J. Waddill, for appellees.

HAZELRIGG J.

Appellee Arnett was the owner of a farm in Henderson county, on which in February, 1890, and prior thereto, he and his family resided, and in which he was entitled to a homestead. In April, 1890, he sold this farm for the sum of $4,000, and at once invested $2,400 of the money in the purchase of 244 acres of land in Hopkins county. He then sold to appellee Sutton 125 acres of the Hopkins county farm for $1,400 retaining and residing on the balance-some 119 acres-with his family, and the value of which is estimated to be not exceeding $1,000. In February, 1890, Arnett became the surety of one Royster to the latter's creditors, and in April 1891, the appellant, Cooper, as agent for such creditors obtained in the Henderson circuit court a judgment against Royster and Arnett for some $515, and in July thereafter had an execution to issue to Hopkins county, where it was levied on the lands owned by the appellee Arnett and his vendee, Sutton. At a sale under the execution, appellant bought the entire tract for his debt, and brought this action for an enforcement of his alleged lien.

It appears that Sutton did not pay some $400 of the purchase price of the 125 acres until after the levy of the appellant's execution, in July, and for that reason his land was sought to be subjected to sale. Of this contention it is only necessary to say that the debtor had the right to pay his creditor, unless prevented by attachment or other appropriate means. Sutton bought the land at a fair price, got a title bond therefor, and paid all the purchase money thereon except $400 before the levy of the execution. That he did not get a deed therefor until after the levy, and pay the balance of the purchase price, does not result in placing his land lien under the execution. Arnett was not then the owner of it, and the mere levy does not affect Sutton's land, or Sutton, to any extent or for any purpose.

As to Arnett, it is evident that, as he had a homestead in the Henderson county farm, he had one in the land bought in Hopkins county with...