Marshall v. Tully

• Decision Date: 16 December 1921
• Citation: 235 S.W. 726,193 Ky. 246
• Parties: MARSHALL v. TULLY.
• Court: Kentucky Court of Appeals

235 S.W. 726

193 Ky. 246

MARSHALL v. TULLY.

Court of Appeals of Kentucky.

December 16, 1921

Appeal from Circuit Court, Logan County.

Action by J. F. Tully, etc., against Mrs. Oder Marshall. Judgment for plaintiff, and defendant appeals. Affirmed.

S. R Crewdson and O. M. Smith, both of Russellville, for appellant.

I. G Mason, of Adairville, for appellee.

CLARKE J.

This is an appeal by an execution defendant from a judgment overruling and dismissing her motion to quash the levy of the execution upon her land and to set aside the execution sale of same.

The validity of the levy and sale is questioned solely upon the ground that the land was exempt therefrom as a homestead by section 1702, Kentucky Statutes; and, the case having been submitted upon the pleadings without proof, the single error complained of upon this appeal is that the judgment should have been for appellant instead of appellees, because the burden of proof upon the one issue of fact was upon the latter.

Section 1702 of the Statutes, in so far as it is here involved provides that there shall be exempted from sale under execution "so much land, including the dwelling house and appurtenances owned by debtors, who are actual bona fide housekeepers with a family, resident in this commonwealth, as shall not exceed in value one thousand dollars; but this exemption shall not apply to sales under execution * * * if the debt or liability existed prior to the purchase of the land."

Appellant by the allegations of her written motion and notice brought herself and the land levied upon within the provisions of this statute, except that she failed to show she did not come within the exception by denying that the debt existed prior to her purchase of the land.

Appellees filed a written response which did not deny any of the allegations of fact contained in the notice and motion, but simply alleged that the execution debt was created and existed prior to the purchase of the land by appellant, which allegation was traversed of record.

The rule of pleading is thoroughly established in this state that one who asserts a right, which is conferred by statute subject to a specified exception, must negative the exception if it is contained in the sentence or paragraph of the statute that creates and defines the right; but if the exception is not found in the sentence or paragraph that creates and defines the right, but is contained in a separate section or distinct proviso or paragraph, it is matter of defense to be pleaded by the adverse party. This rule is applicable alike in both civil and criminal proceedings. Central Kentucky Asylum v. Penick, 102 Ky. 533, 44 S.W. 92, 19 Ky. Law Rep. 1583; Bush v. Wathen, 104 Ky. 548, 47 S.W. 599, 20 Ky. Law Rep. 731; Becker, etc v. Crow, etc., 7 Bush, 201; L. & N. R. R. Co. v. Belcher, 89 Ky. 194.12 S.W. 195. 11 Ky. Law Rep. 393; Commonwealth v. Meeks, 192 Ky. 690, 234 S.W. 292; Dials v. Commonwealth, 192 Ky. 440, 233 S.W. 888.

Applying this rule to the notice by which the proceeding was instituted and which by the Code must be in writing (section 624) and state the nature and grounds of the motion (section 446), and, as we have frequently held, must contain the requisite of a...