Foreman v. Cook
| Citation | 127 S.W.2d 856,277 Ky. 812 |
| Parties | FOREMAN v. COOK et al. |
| Decision Date | 21 April 1939 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Ohio County; George S. Wilson, Judge.
Suit by N.D. Foreman against E. F. Cook and others to enjoin enforcement of the levy of execution. Judgment for defendants, and plaintiff appeals.
Reversed with directions.
E. S Howard, of Hartford, for appellant.
M. L Heavrin, and O. C. Martin, both of Hartford, for appellees.
At the time the appellant and plaintiff below, N.D. Foreman, gave his deposition in this case, as if on cross-examination (which was on March 24, 1937), he was 48 years of age. About 13 years prior thereto, and after he had married and was the father of three children, he became indebted to appellees and defendants below in the amount of two grocery accounts aggregating about $100. Shortly thereafter his father died the owner of about 160 acres of land of little value, located in Ohio County, Kentucky, and appellant with his family thereafter moved into the residence owned by his father before the latter's death. Later the land of the father was divided by a court proceeding and plaintiff was allotted 22 acres as his share, and which included his father's residence where he (appellant) was living at the time. The 22 acres contained only 5 or 6 acres of any value for cultivation, the remaining portion being worn hill land worth but little for any purpose, and of comparatively no productive value. In the meantime plaintiff's health failed and he and his wife concluded that they could make life easier by moving to Owensboro, Kentucky, where she could get work to do and appellant would be more accessible to physicians for treatment of his ailment and thereby be better prepared for the restoration of his health. They rented premises in Owensboro and made the move, carrying with them, of course, their then three infant children, consisting of one girl and two boys. They resided there and the wife got work, but the record does not disclose what the husband did, if anything, during their Owensboro residence.
Sometime prior to July 24, 1933 (the date not being shown in the record), differences grew up between appellant and his wife and they separated, but it is not shown in the record the nature of the disturbance of their domestic tranquility, nor is there any intimation as to who was to blame therefor, except that in a following suit for a divorce by the wife against her husband (appellant) she was successful and obtained a judgment on the date indicated setting aside the bonds of matrimony. At that time the daughter was more than 21 years of age and had married. A son next in age to her was close to 21 years of age and shortly thereafter he married--leaving only one infant child, the youngest boy, who was afflicted with epilepsy. The judgment of divorce said: "And she (the wife) is hereby awarded the care, custody and control of Hollis Foreman, the infant child of the above named parties, and the defendant is to have the privilege of visiting the said child and having said child with him at reasonable times and should either thereof, the above named parties, marry, then they may make a new agreement regarding the care, custody and control of this infant, until further orders of this court." No alimony allowance was ordered in the judgment and presumptively none was asked. No other pleading or order or any part of the divorce action appears in this record.
When the parties separated (which was, of course, prior to the filing of the divorce action brought in the Daviess circuit court), the husband immediately moved back to his small Ohio county farm inherited from his father, which in the meantime became occupied by the daughter and her husband to which they removed immediately after their marriage. Appellant carried with him his infant son, who was then some 12 or 13 years of age, and the four lived together upon the inherited Ohio county farm for some two years when the daughter and her husband moved back to Owensboro, and the infant son went with them, and we gather from the record (although there is no specific evidence on the question) that he thereafter resided with his mother, who in the meantime had married the second time. Being left alone the appellant resided on his inherited farm for perhaps a year or more, but he had difficulty in making ends meet owing to the fact of the small amount of cultivatable land on his farm. He had an opportunity of renting it for an annual rental of about $50, which he consented to and did do, but not until he had rented for himself another place about a mile away from a neighbor, upon which there was a small abandoned shack and which contained more land suitable for cultivation. His wife's uncle, who was quite old and more or less feeble, had previously taken up his abode with appellant and the two moved into the rented farm located about a mile away from appellant's tract. At an earlier date appellees procured two judgments against appellant on their merchandise accounts, in the quarterly court of Ohio county.
In 1936 they procured copies of those judgments and filed them in the Ohio circuit court. They then obtained executions thereon and the sheriff levied them on appellant's inherited farm while he was living on the nearby rented place referred to. However, at all of the rentings of his inherited farm he had reserved space for the storage of some of his household goods and which was so utilized by him. After the sheriff levied the executions, as stated, appellant filed this action in the Ohio circuit court against his creditors in the executions against him, and the sheriff to enjoin the enforcement of the levy, on the ground that the property levied on was exempt to him as a homestead. The answer of defendants denied the averments of the petition and affirmatively pleaded that defendant had abandoned his homestead because of the facts hereinbefore recited. That pleading was denied and appellees then took the deposition of appellant, as if upon cross-examination, and they also took the deposition of one Patton from whom the nearby farm occupied by appellant was rented, and upon which he resided at the time of the levy.
The case was then submitted and the court dismissed appellant's petition upon the ground that plaintiff "abandoned his homestead in and to the 22 acres of land mentioned and described in his petition," and for which reason he was not entitled to the exemption contended for. It will thus be seen that the judgment was bottomed exclusively on the ground of abandonment of the homestead, and not upon any other ground, such as that appellant was so statused at the time of the levy of the executions (i. e., that he did not then have a family dependent upon him) as to entitle him to claim a homestead in the land sought to be subjected. From that judgment appellant prosecutes this appeal.
An examination of our opinions show beyond controversy that whether or not an abandonment of what is called a "homestead"--acquired under the provisions of section 1702 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes--has or not been abandoned is one to be determined by the specific facts of each individual case. Cincinnati Leaf Tobacco Warehouse Co. v. Thompson, 105 Ky. 627, 49 S.W. 446, 20 Ky.Law Rep. 1439; Campbell v. Potter, 29 S.W. 139, 16 Ky.Law Rep. 535; McFarland v. Washington, 14 S.W. 354, 12 Ky.Law Rep 373; Roark v. Bach, 116 Ky. 457, 76 S.W. 340, 25 Ky. Law Rep. 699; Moody v. Barker, 188 Ky. 401, 222 S.W. 89; Conway v. Reed, 193 Ky....
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