Mouser v. Harmon

• Decision Date: 09 February 1895
• Citation: 96 Ky. 591,29 S.W. 448
• Parties: MOUSER v. HARMON et al. (two cases).
• Court: Kentucky Court of Appeals

29 S.W. 448

96 Ky. 591

MOUSER v. HARMON et al. (two cases).

Court of Appeals of Kentucky.

February 9, 1895

Appeals from circuit court, Marion county.

"To be officially reported."

Actions by J. H. Mouser against E. A. Harmon and against Lizzie Harmon, consolidated, are brought to recover a homestead interest in land in which his deceased wife had a life estate, and which defendants, her heirs, had possession of under a judgment rendered against plaintiff, by his default through mistake of the law, in a former action brought by them against him. From judgments for defendants, plaintiff in each action appeals. Affirmed.

S. A Russell and Lafe T. Pence, for appellant.

Robert Harding and H. W. Rives, for appellees.

HAZELRIGG J.

The appellant, Mouser, married Mary A. Overstreet, a widow, in October, 1891. The latter was the owner for life, and in her own right, of several small tracts of land in Marion county upon which she and her husband lived until in January, 1892 when she died. The husband continued to live on the lands after his wife's death, until some time in 1892, when, at the suit of the appellees, he surrendered the lands to them by reason of a judgment rendered against him to that effect in the Marion circuit court. The petition of the appellees in that suit averred that the plaintiff Lizzie, whose husband was her coplaintiff, was the only child of Mary A Overstreet, and was the owner and entitled to the immediate possession of the lands then wrongfully held by the defendant, Mouser, the present appellant, and that Mouser, after the death of Mary A., his wife, remained on the lands, and was still claiming some kind of right thereto, but that they did not know the extent of his claim, though they averred he had no valid claim whatever to the possession, use, or occupation of any of the lands; that he had refused to vacate the premises to the plaintiffs, though possession had often been demanded. To this suit, Mouser, though duly summoned, made no answer; and a judgment to the effect that the plaintiffs were entitled to the immediate possession of the lands described was rendered in March, 1892, and a writ of possession ordered. Mouser then surrendered the possession to the plaintiffs. On July 29 and 31, 1893, he brought these suits, setting up, in substance, the facts we have recited, and averring that notwithstanding the judgment in the former action against him, the petition and judgment in which he made part of his petitions, he was entitled to a homestead in the lands of his...