Lear v. Lear

• Decision Date: 16 May 1930
• Citation: 28 S.W.2d 32,234 Ky. 369
• Parties: LEAR v. LEAR.
• Court: Kentucky Court of Appeals

28 S.W.2d 32

234 Ky. 369

LEAR v. LEAR.

Court of Appeals of Kentucky

May 16, 1930

Appeal from Circuit Court, Scott County.

Action by Adeline Lear against J. F. Lear. From a judgment for plaintiff, defendant appeals.

Affirmed.

James Bradley, of Georgetown, for appellant.

Ford &amp Ford, of Georgetown, for appellee.

REES J.

Appellant and appellee are husband and wife, but separated shortly before this action was instituted. They are joint owners of a house and lot admittedly worth less than $1,000. The wife brought this action under section 490 of the Civil Code of Practice for a sale of the jointly owned property. The husband filed an answer in which he alleged, in substance that he and the plaintiff had used and occupied the property as a homestead until about the time plaintiff instituted this action, when she abandoned the home, and that his right of homestead attached to the plaintiff's interest in the property, the whole of which is worth less than $1,000. The lower court sustained a demurrer to the answer. The defendant declined to plead further, and a judgment was entered directing the sale of the property and a division of the proceeds equally between the husband and wife. From this judgment, the husband appeals.

It is appellant's contention that, where property is jointly owned by a husband and wife and occupied as a homestead by one of the parties and is worth less than $1,000, a sale under section 490 of the Civil Code of Practice cannot be had by the party that has abandoned it, and he relies upon Charboneau v. Hart, 211 Ky. 204, 277 S.W. 242, and Bishop v. Simpson, 224 Ky. 289, 6 S.W.2d 253.

In Charboneau v. Hart, the appellee and his first wife jointly owned a tract of land worth less than $1,000. After his wife's death he continued to occupy the tract as a homestead. He remarried and the children by his first wife sought to have the land sold under section 490 of the Civil Code of Practice, and it was held under section 1702 of the Statutes that Hart was entitled to the possession of the whole tract as a homestead. In Bishop v. Simpson an execution was levied on a homestead owned by the husband who failed to interpose a defense, and it was held that the wife might defend for him and assert the right of homestead which the husband had failed to do. Neither of these cases is controlling here. The wife or husband of the owner of the homestead has no estate or vested interest in the property during the owner's lifetime. The homestead exemption runs to the owner, and the right of a spouse is a derivative and not a direct one. Demarest v. Allen, 189 Ky. 32, 224 S.W. 458; Summers v. Sprigg, 35 S.W. 1033, 18 Ky Law Rep. 206. The homestead interest is not an estate, but merely an exemption from sale for the payment of debts, and after the death of the owner is a right of occupancy in the surviving spouse and infant children. Demarest v. Allen, supra; Brandenburg v. Petroleum Exploration Co., 218 Ky. 557, 291 S.W. 757; Turner v. Browning, 128 Ky. 79, 107 S.W. 318, 32 Ky. Law Rep. 891; Little v. Woodward, 14 Bush, 585; Brame v. Craig, 12 Bush, 404.

Section 1707, Kentucky Statutes, provides that "the homestead shall be for the use of the widow so long as she occupies the same, and the unmarried infant children of the husband shall be entitled to a joint occupancy with her until the youngest unmarried child arrives at full age. But the termination of the widow's occupancy shall not affect the right of the children; but said land may be sold, subject to the right of said widow and children, if a sale is necessary to pay the debts of the husband."

By section 1708 of the Statutes the husband is given the same right in the homestead of the wife that the surviving wife has in the homestead of the husband. But this statute does not give to a husband any right of homestead in the land of his wife during her life.

Section 2127, Kentucky Statutes, provides that "marriage shall give to the husband, during the life of the wife, no estate or interest in the wife's property, real or personal owned at the time or acquired after the marriage. During the existence of the marriage relation the wife shall hold and own all her estate to her separate and exclusive use, and free...