Burrow v. Maxon, 129 Ky. 578

129 Ky. 578 | Ky. Ct. App. | 1908

Opinion op the Court by

Judge Hobson

— Affirm-

ing.

I). E. Burrow had a debt against O. W. Maxon, which was created between the years 1896 and 1902. He sued Maxon upon the debt, and recovered judgment. Execution was issued upon the judgment and levied upon a tract of land, the property of Maxon. The land was sold, and was purchased by Burrow. It was not redeemed, and Burrow instituted this proceeding by motion in the McCracken circuit court for a writ of possession. By his answer Maxon set up that the land was a homestead, and as such exempt from execution sale. The case was heard by the court, and judgment entered in favor of Maxon, from which Burrow appeals.

There was no motion for a new trial in the circuit court, no separate finding of law and facts, and no bill of exceptions was filed. ■ So the only question before us is: Do the pleadings warrant the judgment ? Maxon alleged in his answer that the tract of land was of value less than $1,000; that it was the homestead of himself and family; that he was a bona fide housekeeper, with a family, consisting of his wife and four infant children, actually residing on the land before the creation of the debt and continuously to that time; that.-his father, M. Maxon, had, many years before the creation of the debt, made him a parol gift of the land, and that he had then settled on it; that after his father’s death his sisters by way of compromise had made him a conveyance of the land. The deed from his sisters was filed by him with his answer. It was executed on October 3, 1905, which was before the execution was levied on the land, and after the plaintiff’s debt was created. The deed shows on its face that M. Maxon left a will, which was probated in the county court; that O. W. Maxon took an appeal from the order of the county court admitting the will to probate; and while the appeal was pending, and in compromise of the litigation, his sisters, who were the other children of M. Maxon, made him a deed to this tract of land and paid him $1,000, in consideration of which he dismissed the suit and paid the cost. The statute provides that the exemption shall not apply “if the debt or liability existed-prior to the purchase of the land.” Ky. St. 1903, section 1702. The question then arises: Did O. W. Maxon purchase this land after the creation of the debt to Burrow?

In Jewell v. Clarke’s Ex’r, 7.8 Ky. 398, the court, •construing the statute said: “The object of this provision was to prevent debtors from purchasing homesteads after creating debts or liabilities,' and then claiming the exemption against such debts. The means with which a homestead was purchased might be the very means to which the creditor looked for payment, and gave the debtor the credit which enabled him to create the debt; and it would be unjust to the creditor to allow the debtor, by thus investing in a homestead, the means on the faith of which he obtained credit to defeat the collection of the debt. But, when the debtor derives title to the homestead by descent, no injury is done to the creditor in exempting the homestead so acquired. The means upon the faith of which he gave credit have not been diverted, and the ease does not, therefore, come within the reason of the statute, and the rule that a case not coming within the reason of a remedial statute is not affected by it applies. ” This was followed in Meador v. Meador, 88 Ky. 217, 10 S. W. 651,10 Ky. Law Rep. 783, and in Spratt v. Allen, 106 Ky. 275, 50 S. W. 270, 20 Ky. Law Rep. 1822.

Under these eases it is plain that if M. Maxon had left no will, and the land had been set apart to O. W. Maxon in the division of the estate between him and his sisters, it would have been exempt as a homestead, and could not have been subjected to the Burrow debt. Whether M. Maxon left a will or not was a question at issue in the litigation that was settled by the compromise in which his sisters conveyed to O. W. Maxon the land. Every reason that would exempt a tract of land received by descent would apply to property given in a compromise of a case of that sort. The consideration of the settlement was that O. W. Maxon was one of the heirs at law of M. Maxon, and his sisters conveyed to him this part of the estate, rather than risk his getting more if the will was set aside. If he would have been entitled to the homestead, where his father had settled him on the land and then died intestate, it is hard to see why he should not he equally entitled to it where it was in dispute whether or not his father had left a will, and in settlement of the dispute the property was conveyed to him,by the other heirs. He is no worse off as to the homestead, after the compromise was made- in the will litigation, than he would have been if he had been successful in the will litigation, and in the division of the estate the property had fallen to him; for the sum of the matter is that what he got was given to him in a compromise as his part of his father’s estate. It cannot be maintained that Mason put into the land in any way means to which the creditor might have looked for the payment of his debt; for he got in the settlement not only the land, hut in addition to it $1,000 in money. The case, therefore, falls as clearly within the rule laid down heretofore as any of the cases in which it was applied. See Turner v. Browning’s Adm’r, 128 Ky. 79, 107 S. W. 318, 32 Ky. Law Rep. 891.

Judgment affirmed.