Phillips v. Queen

• Decision Date: 19 February 1887
• Citation: 3 S.W. 146
• Parties: PHILLIPS v. QUEEN and others.
• Court: Kentucky Court of Appeals

3 S.W. 146

PHILLIPS v. QUEEN and others.

Court of Appeals of Kentucky.

February 19, 1887

Appeal from circuit court, Nelson county.

John D Wickliffe, for appellant.

E. E McKay, for appellees.

HOLT J.

The appellee Joseph Queen became surety for Queen & Co. to the appellant, Mary E. Phillips, on a note dated January 16 1866, but which he claims not to have signed until some time subsequent to June 1, 1866, when the homestead law took effect. His house and lot was sold on July 14, 1873, and purchased by the appellant under an execution which issued upon a judgment obtained upon the note. She, having obtained a sheriff's deed to the property, brought a suit on October 13, 1873, for the possession; and on November 5 1873, recovered a judgment by default therefor. The appellee at the same term of court, however, appeared, tendered an answer, and moved to set aside the judgment. The court regarded the pleading as insufficient, and overruled the motion. The appellee then appealed to this court, but, upon hearing, the appeal was dismissed. He then, and on October 7, 1874, brought an action for a new trial; but dismissed it upon the filing of a demurrer to the petition. In May, 1878, he gave a notice, and moved the court which had awarded the writ of habere facias possessionem to the appellant to quash it. One of the grounds upon which the motion was based was that he was entitled to a homestead in the property. After a hearing, it was overruled. He then, together with his wife, brought this action, enjoining the execution of the writ of possession, and asking that they be allowed a Lomestead. The appellant relies upon the above proceedings in bar of the action. Her answer also sets up a purchase of the property by her at a tax sale on April 12, 1874. The appellees demurred to the answer. The lower court, carrying this demurrer back to the petition, held it to be insufficient, and dismissed the action. This court reversed this ruling, because there is an averment in the petition that the levy and sale had been set aside. Upon the return of the cause, the demurrer to the answer was sustained, and a judgment rendered enjoining the enforcement of the writ, and adjudging a homestead right to the appellee. Of this the appellant now complains.

It is unnecessary to pass upon the sufficiency of the defense based upon the tax title, or to decide whether any of the judicial proceedings, aside from the motion...