Cincinnati Leaf Tobacco Warehouse Co. v. Thompson

105 Ky. 627 | Ky. Ct. App. | 1899

JUDGE WHITE

delivered the opinion of the court.

In 1895, appellee, T. L. Thompson, being insolvent, assigned all his estate, real and personal, for the benefit of his creditors,, reserving to himself all the property exempt to him as a housekeeper with a family. The Harrison County Court, at the September term, 1895, appointed three persons to allot to appellee his exemptions, including homestead in a farm near Cynthiana, containing about 250 acres. These commissioners allotted "to appellee, Thompson, 26.1 acres, including the dwelling house and barn. To this report, appellant, a creditor of appellee, filed exceptions, which were overruled by the judgment of the county court. Appellant appealed to the circuit court, and, upon trial there before the court without a jury, the exceptions were again overruled, and the report of allotment confirmed. From that judgment, this appeal is prosecuted.

The exceptions to the report of allotment are (1) that the amount of real estate allotted is worth more than $1,000; (2) a denial that appellee is entitled to a homestead by reason of the fact that he is a resident of Cynthiana, three or four miles from the farm, and did not live, nor had for several years lived, on the farm, but, on the contrary, had several years before abandoned the farm as a home.

These questions of fact presented by the exceptions were submitted to the court without a jury and by the well-established rule of this court his findings are treated as the verdict of a properly instructed jury.

Thetestimonyintroducedonthe trial shows that Thompson had lived on the farm, and had acquired a homestead right therein; that he moved to Cynthiana for the purpose of sending his daughter to school; the farm was rented on shares, appellee furnishing everything, and receiving two-thirds of the crop as rent; that the tenant did not have possession of two rooms of the house; that in those two rooms were some household goods of appellee that he did not care to move to town with him; that he had repeatedly expressed his intention to return to the farm as soon as his daughter finished at school; that he had declined to buy property in Cynthiana for the reason, as stated, that he intended to return to the farm. It is shown that he engaged in the tobacco business in Cynthiana, and registered and voted there in the city elections.

Appellant objected to the introduction as proof of the declarations of Thompson as to his intentions to return to the farm, and that his residence in Cynthiana was only temporary. We think this testimony was admissible. It was not suggested that these statements were made at a time that he was embarrassed, and was prospectively claiming a homestead, or that they were not made in good faith. On the contrary, these declarations were made from the time he left the farm, and always consistent. A person’s intentions are best proven by his acts and declarations made at the time they are to be known. The fact that he registered and- voted in Cynthiana is not conclusive evidence of an abandonment of his homestead in the country, but is merely a circumstance to be considered in connection with the other proof in determining the fact whether the homestead had been abandoned. Campbell v. Potter, 16 Ky. Law Rep., 535 [29 S. TV., 139].

On the question of abandonment we will not disturb the finding of the circuit court, that he had not abandoned the homestead, but was entitled to have same laid off to him.

On the question of the value of the 26.1 acres allotted, there were but two witnesses sworn on the trial, — appellee, Thompson, and his tenant. Both of these' witnesses testified that the land and improvements allotted were worth over $1,000. The lowest figure put by appellee himself on this land was $1,350. The lowest estimate by the. other witness is $1,660.- From this evidence we are of opinion that the amount allotted appellee was excessive, and the exception of appellant should have been sustained on this ground. Appellee himself admits on oath that he was allotted more than $1,000. He must know better than any one if this be true. His own statements and admissions as against himself are conclusive against him that the amount is too large.

For the reasons indicated, the judgment of the circuit court is reversed, and cause remanded for further proceedings consistent herewith.