Gowdy v. Johnson

• Decision Date: 03 November 1898
• Citation: 104 Ky. 648,47 S.W. 624
• Parties: GOWDY v. JOHNSON. [1]
• Court: Kentucky Court of Appeals

47 S.W. 624

104 Ky. 648

GOWDY v. JOHNSON. ^[1]

Court of Appeals of Kentucky.

November 3, 1898

Appeal from circuit court, Taylor county.

"To be officially reported."

Action by John A. Johnson against George H. Gowdy, administrator, to quiet title. Judgment for plaintiff, and defendant appeals. Affirmed.

W. C McChord, for appellant.

Garnett & Garnett and H. S. Robinson, for appellee.

HAZELRIGG J.

On June 26, 1879, one Christie caused an execution to be levied on 123 acres of land belonging to his debtor, the appellee Johnson, who was a housekeeper with a family and entitled to a homestead. Appraisers Cundiff and Griffin were accordingly selected by the officer levying the execution to set apart the homestead, and did so by giving the debtor 92 acres of the tract. The residue of the land was sold by the officer. On November 5, 1883, the appellant, Gowdy, caused an execution against Johnson to be levied on the 92 acres theretofore laid off as a homestead; and appraisers Sublett and Burress were selected and they set apart the entire tract to the debtor as a homestead, at $828. On November the 20th of the same year another execution issued on the same judgment, and appraisers Taylor and Shreve set apart the same tract, valuing it at $969. Two other executions were issued subsequently, but no further effort seems to have been made to subject the homestead to the debt until December, 1894, when another execution issued, and appraisers Kerr and Romine set apart 29 acres of the tract as a homestead, valuing it at the statutory limit of $1,000. The officer then proceeded to sell the residue under the execution, when the plaintiff therein bought it at the price of $800, a sum considerably less than his debt and interest. Johnson then instituted this action in equity to have the levy and sale declared void, and his title and right quieted to the homestead as originally laid off. The answer of Gowdy sets up at length various matters supposed by him to authorize the revaluation of the homestead, and the levy on, and sale of, the excess of land over the value limit of the statute. Among other things, he avers that, as he was no party to the Christie execution, he is not bound by the action of the appraisers in setting apart the 92 acres; that as the Christie debt was small, and the residue of the tract left for sale was ample to pay the debt, the proceeding was merely formal; that as a matter of fact the 92 acres of land at that time were worth at least $1,500 or more,--a fact well known to the appraisers,--and their action was therefore fraudulent; that he is not estopped by the action of subsequent appraisers under his execution; and that since 1883 the land has increased in value to the extent of $500 at least. He avers, further, that, prior to the last levy and sale under his execution, the debtor, Johnson, ceased to be a housekeeper with a family.

We are of opinion, as held by the chancellor on demurrer, that these averments do not constitute any reason whatever for disturbing the original setting apart of the 92 acres to Johnson as a homestead under the Christie execution. It is settled law that the action of the appraisers is final and conclusive against the world, unless impeached for fraud or mistake. The mistake meant is not one of mere judgment with respect to the value of the land set apart. That is the precise thing they are called on to do,--value the land and set it apart. If, intending to set apart, by 50 acres, they should, in fact, set apart, by mistake, 100 acres, this would afford ground for relief to any complaining creditor. Nor can there be relief in this case on the ground of fraud. The answer declares that more than 10 years have elapsed since the alleged fraud (section 2519, Ky. St.), and as relief against fraud or mistake should be sought within 5 years from the discovery thereof, and, in any event, within 10 years from the act complained of, the averments were insufficient to afford ground for relief, and it was proper to so declare on demurrer.

It was not denied that Johnson was a housekeeper, and in the possession of the 92 acres, when Gowdy obtained the new appraisement, and levied on and sold the residue of the tract; his averment on this subject being simply to the effect that Johnson had ceased to have a family. This question has been authoritatively settled by this court in Stults v. Sale, 92 Ky. 5, 17 S.W. 148, where it was held that, while it was essential to the creation of the homestead right that the debtor should have a family, it was not essential to the continuance of the right. The loss of his family, as by death or marriage, did not deprive him of the right.

The only remaining question is to ascertain what effect, if any is to be given the averment of Gowdy, presented in the nature of a counterclaim, that the value of the homestead had increased to the extent of at least $500 since 1883. He avers that it is now in fact worth $2,500, and expresses his willingness to pay $2,000 for it. Whether the fact that the homestead, as originally established, has so increased in value as to exceed the limit of value prescribed in the statute, may authorize a revaluation and reassignment, is a question not free from difficulty. It seems not to have been determined in this state, and in other states the courts have not agreed. In Missouri the statute seems to be quite similar to ours, and in Beckner v. Rule, 91 Mo. 62, 3 S.W. 490, it was said: "There is not a provision in the statute...