Hansford v. Holdan

• Decision Date: 25 September 1878
• Citation: 77 Ky. 210
• Parties: Hansford v. Holdam.
• Court: Kentucky Court of Appeals

77 Ky. 210

Hansford v. Holdam.

Court of Appeals of Kentucky.

September 25, 1878

APPEAL FROM LINCOLN COMMON PLEAS COURT.

SAUFLEY & WARREN, W. H. MILLER, AND W. G. WELCH FOR APPELLANT.

F. F BOBBITT, J. S. & R. W. HOCKER, AND HILL & ALLCORN FOR APPELLEE.

OPINION

HINES JUDGE:

Appellant being the owner of a tract of land on which he resided with his family, sold for $1,000 a portion thereof, including the dwelling and other improvements, delivered possession to the purchaser, and rented premises some two miles therefrom. During his occupancy of the rented property he commenced the erection of a dwelling-house on the unimproved portion of the land belonging to him, with the avowed intention to make it his home. While these improvements were being made he mortgaged this land, the wife not joining, to appellee, and shortly afterward moved into the house and continues to occupy it as a home for himself and family. Appellee brought this action to subject the property to the payment of the mortgage-debt. Appellant answered, claiming a homestead which the court refused to allow, and directed the sale of so much of the property as might be found necessary to satisfy the claim, and also gave personal judgment against appellant.

The homestead-law is for the benefit of all bona fide housekeepers with a family, but does not apply to sales under execution, attachment, or judgment, at the suit of creditors if the debt existed prior to the purchase of the land or to the erection of the improvements thereon.

In this instance the land was purchased before the debt was created but a part of the sum of money which the mortgage was executed to secure, was applied by appellant in payment for the land. The improvements, though in process of construction, were not completed or occupied by appellant until some six weeks after the date of the mortgage.

In Brown v. Martin, 4 Bush, 50, it is said that the right of exemption depends upon the present, or actual purpose and intention of the debtor to use and enjoy the property sought to be exempted as a home for himself and family. The question did not arise then, however, as to whether the intention of the debtor to establish his residence upon certain premises, which had not been previously occupied by him as a home, would entitle him to the exemption.

We are of the opinion that when there has been an occupancy, and a removal temporarily, with the intention to...