Hasty's Heirs v. Berry

• Decision Date: 17 June 1886
• Citation: 1 S.W. 8
• Parties: HASTY'S HEIRS v. BERRY.
• Court: Kentucky Court of Appeals

1 S.W. 8

HASTY'S HEIRS v. BERRY.

Court of Appeals of Kentucky.

June 17, 1886

Appeal from Powell circuit court.

Wood & Day, for appellants, James Hasty's Heirs. W. H. Holt, for appellee, L. W. Berry.

PRYOR, C.J.

The appellee in this case had made an assignment of his property, including his real estate, reserving the right of homestead. The appellant had attached the assignment as fraudulent, and was a party to the proceeding by the assignee to settle the trust, in which the homestead had been allotted to the appellee. He participated in the distribution of the proceeds of sale, and is now (having failed to make all of his debt) seeking to subject the homestead to its payment, upon the ground that his debt was created prior to the homestead law.

All these matters were litigated in the former proceeding. The right to a homestead was set up against all of the creditors, and, if not entitled, the question should have been made by the appellant. The claim was asserted, and the homestead had been set apart; and, if liable to appellants' claim, the right of appellant should have been asserted in the suit for the settlement of the trust-estate. Besides, in this case there was property, or the proceeds of other land, excluding the homestead, that was sufficient to pay this debt; and, as all the creditors claimed under the deed of trust, and accepted its provisions by participating in the distribution, they cannot now disturb the appellee in the enjoyment of his right.

The case of Webster v. Bronston, 5 Bush, 521, has been disapproved by this court, and the dissenting opinion of Judges ROBERTSON and PETERS recognized as the law, in the case of Gardner v. Smith, 10 Bush, 245.

The judgment is therefore affirmed.

HOLT, J., not sitting.