172 Ky. 127 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
Plaintiff, J. C. Hurst, brought separate suits against tbe city of Flemingsburg and Fleming County to enjoin them from collecting taxes on bis intangible property. Tbe suit against tbe city of Flemingsburg involves taxes for tbe years 1912, 1913 and 1914. Tbe suit against Fleming County involves taxes for tbe years 1913 and 1914. Tbe two suits were consolidated. Tbe injunction was asked on tbe ground that plaintiff was a resident of tbe State of Ohio. On final bearing plaintiff was denied tbe relief asked and be appeals.
Tbe record develops tbe following facts: Plaintiff and bis wife were tbe owners of a farm in Fleming County. They disposed of tbis farm in tbe year 1909 and gave to tbeir three children $6,000.00 apiece. In tbe spring of 1910 plaintiff bought a lot in Flemingsburg. Upon tbis lot a dwelling bouse was erected ' with tbe money of bis wife. Tbe bouse was equipped with every modern convenience and was well furnished. Shortly after tbe purchase of tbe lot plaintiff bought a farm in Brown County, Ohio. At tbe time of tbe purchase, which was before this controversy arose, he announced that
The proof for the defendants tends to show that during the years in question plaintiff spent the greater portion of his time in the city of Flemingsburg and that his neighbors never knew that he had changed his residence, but regarded him as a resident of Flemingsburg. Some of them also say that he stated that he was building a comfortable home in Flemingsburg for himself and wife.
Of course, a party cannot live altogether in one state and acquire a residence in another state by mere declaration of intention. The question of residence is one of fact and intention. Both must concur. But where a party has an actual residence in two different states and spends a substantial portion of his time in each, he may establish his residence in either state, and neither the fact that his dwelling house in the other state is more comfortable or better furnished, nor the fact that he spends the greater portion of his time there, will be conclusive on the question of residence. Here both the intention and fact concur. Just after-he had given up his home in Fleming County plaintiff acquired the Ohio farm for purposes of a home. This is not all that he did. He established a residence on the farm. Each year he spent a portion of his time there, improving his farm and transacting the only business which he had. He exercised the privileges of a bona fide resident and citizen by participating in the elections held in the county where his farm was located. His intangible property was subject to taxation at the place of his legal resi
Judgment reversed and cause remanded for proceedings consistent wdth this opinion.