Mason v. Columbia Finance & Trust Co.

• Decision Date: 03 April 1896
• Citation: 35 S.W. 115,99 Ky. 117
• Parties: MASON v. COLUMBIA FINANCE & TRUST CO.
• Court: Kentucky Court of Appeals

35 S.W. 115

99 Ky. 117

MASON v. COLUMBIA FINANCE & TRUST CO.

Court of Appeals of Kentucky.

April 3, 1896

Appeal from circuit court, Montgomery county.

"To be officially reported."

This was an action to set aside a homestead, brought by John H Mason against the Columbia Finance & Trust Company. Mason was insolvent, and, under an assignment for benefit of creditors his lands were sold. In the distribution of assets, he was denied the right of homestead or its value, and he appealed. Reversed.

A. T Wood, H. M. Woodford, and C. C. Turner, for appellant.

Stone &amp Sudduth, for appellee.

PRYOR C.J.

The sole question to be determined on this appeal is whether or not the appellant, John Mason, is entitled to a homestead in certain real estate conveyed by him to A. A. Hazelrigg, for the benefit of creditors. The appellant, Mason, and his wife, owned jointly a tract of 312 acres of land. The wife owned a part of the tract laid off and designated by metes and bounds in her own right, and the land owned by the husband adjoined the land of the wife, the entire body of land owned by husband and wife containing 312 acres, and used and cultivated as one farm. The house in which they lived was on 25 acres of the land, to which the wife had the fee, the husband's land bordering upon it. The insolvency of the husband caused an assignment for creditors, and in the distribution of assets, his land having been sold, he was denied the right of homestead or its value, and has appealed.

The case of Vanmeter v. Vanmeter (Ky.) 13 S.W. 924, is relied on as sustaining the judgment below. In that case the husband assigned, having a right of curtesy in the tract of land of his wife upon which he lived worth more than $1,000; and this court held he was not entitled to a homestead in both tracts. The land on which he lived, or his life estate in it, being worth $1,000, and living upon it, he must take that, and not his homestead in the tract to which he had the fee.

It is insisted that, to enable the appellant to assert his right he must have actually lived on the land to which he had the fee; and this is the general doctrine on the subject, and often controls the decision of such questions. In this case, the appellant, in contemplation of the statute, looking to both the letter and spirit of its provisions, was living on the land to which this right is asserted. It was all one tract, so regarded by the parties, and...