Summers v. Sprigg

• Decision Date: 22 May 1896
• Citation: 35 S.W. 1033
• Parties: SUMMERS v. SPRIGG.
• Court: Kentucky Court of Appeals

35 S.W. 1033

SUMMERS v. SPRIGG.

Court of Appeals of Kentucky.

May 22, 1896

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Action by J. P. Summers against Henry Sprigg to quash a levy on plaintiff's interest in lands, claimed as his homestead. From a judgment in favor of defendant, plaintiff appeals. Reversed.

J. P Hobson, for appellant.

Sprigg & Chelf, for appellee.

LANDES J.

The appellee caused an execution in his favor against the appellant to be levied on the appellant's interest in a parcel of about 12 acres of land in Hardin county, which the appellant claimed as his homestead, and in this action the appellant sought to have the levy quashed, and to have the land levied on adjudged to be his homestead. The court below adjudged that the appellant was not entitled to a homestead in the land, and dismissed his petition, and from that judgment he has appealed.

It appears that the land levied on was purchased by the appellant, who was a housekeeper, and occupied by him with his family, consisting of his wife and one child, as a homestead, some time before the debt he owes the appellee was created. It also appears that he moved from this land to a farm, belonging to his wife, situated about 440 yards from his land, but connected with his land by a public road. This occurred about 10 years ago, and he has been living with his family on his wife's land ever since he moved there being all the time a bona fide housekeeper, but has continually used both tracts as if they were contiguous using the house on his land, as farmers ordinarily use such houses, in connection with his farming operations; and that the land levied on is all the land he owns, and that he has during all this time, claimed it as his homestead, and that it is of less value than $1,000. His wife's farm contained originally 137 acres, but in 1890 they conveyed to a brother of appellant an undivided half of it for $2,600 and mortgaged the other undivided half to him for $2,500, and the whole tract is worth $4,500. It is claimed by counsel for the appellee that this land of appellant is subject to execution for his debt against the appellant, on the ground that he has a homestead in his wife's land, and the further ground that the appellant had abandoned it when he left it and moved on his wife's land. But this claim cannot be sustained. It is true that under the statute the surviving husband is entitled to a homestead right in the homestead of his wife, in like manner, and under the same restrictions, as are provided for the widow respecting the homestead of her deceased husband. Gen. St. c. 38, art. 13, §§ 14, 15; St. Ky. §§ 1707, 1708. But the husband is not entitled to the exemption for his debts of homestead in the lands of his wife until after her death,...