Stults v. Sale

• Decision Date: 12 September 1891
• Citation: 92 Ky. 5,17 S.W. 148
• Parties: Stults v. Sale.
• Court: Kentucky Court of Appeals

17 S.W. 148

92 Ky. 5

Stults v. Sale.

Court of Appeals of Kentucky.

September 12, 1891

Appeal from Louisville chancery court.

"To be officially reported."

Action by W. B. Stults against H. H. Sale. Judgment for defendant. Plaintiff appeals. Affirmed.

Holt C.J.

This appeal presents a single, but hitherto undecided, question by this court. When the appellee, H. H. Sale, in 1864, first came into the occupancy of the property in contest, and in which he had a life-estate, he was undoubtedly a bona fide housekeeper with a family. It then consisted of a wife and five children; and that he then acquired a homestead right in the property is beyond question. He has occupied it as a housekeeper ever since. In 1883, when this suit was brought upon a return of nulla bona to subject whatever property he had to the payment of the appellant's debt, his family had narrowed to one daughter, an invalid brother, and his mother-in-law; and since October, 1887, although a housekeeper in the property he has, by reason of death and marriage, had no family whatever, within the legal meaning of that term, living with him. Brooks v. Collins, 11 Bush, 622. It is therefore claimed that it is not now exempt to him as a homestead, but is liable to the appellant's debt. Our statute exempts to the debtor as a homestead land worth not over $1,000, if he be a bona fide housekeeper, with a family, of this commonwealth. ^[1] The nature of this right is not fixed by the statute by name. He may sell the property, but is divested of the right to it if he permanently abandons it as his home. It may, perhaps, be said to be a qualified estate. It continues after his death, for his widow, during her occupancy of it, though there be no children. ^[2] Gay v. Hanks, 81 Ky. 552. The husband has the like right in the homestead of the deceased wife. ^[3] This court has decided that where the right is thus derivative the having of a family is not necessary to its continuance. It is to the creation of the right at the outset in the husband or wife, but not to the continuance of it in the survivor. Ellis v. Davis (Ky.) 14 S.W. 74. In this case, however, there is no derivative right of homestead. The property belongs to the husband, who is the debtor, and is claiming it as exempt to him as a homestead. Undoubtedly the having of a family was necessary to the creation of the right in him, but is it necessary to the continuance of it? While essential to its coming into existence, yet, when it has once vested in the debtor, does he lose it by death or the marriage of his children, leaving him alone, but still a housekeeper, in the occupancy of the property? The statute makes no express mention in this respect. We must, therefore, look to its general scope and spirit for guidance, the right being the creature of it. It is urged with force that the homestead exemption is for the benefit of the family, and, therefore where this family relation does not exist, there is no homestead exemption. In other words, the reason for the rule ceasing, the rule ceases. This is true as to the coming into existence of the homestead right; and it is no doubt also true that the primary object of the statute was the protection of families from want, and the giving to them a shelter; yet the fact that the statute gives the homestead of the deceased wife to the husband during his occupancy of it although he has no family, shows that it was not intended to provide for the wife and children alone. He, in such a case does not become homeless. Can it well be supposed that the legislature intended that, in the event of the death of the wife, owning the homestead, the benefit of it should continue to the husband during his occupancy, although he has no family, and yet that if he be the owner of it, and his wife and children die, or the latter marry and leave him, his right to the exemption ceases? If so, it is...