181 Ky. 683 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
Plaintiff (appellee) brought this suit to recover of defendant (appellant) and others $1,000.00 which plaintiff, as accommodation endorser on a note executed by defendant and others, had paid. Insolvency grounds of attachment were made in the petition ánd an order of attachment was issued and Creen A. Combs, a debtor of
Before any other orders were made in the case, and without any adjudication applying the attached fund to plaintiff’s debt or in any manner disposing of it, defendant filed his answer pleading that he was a bona fide housekeeper with a family resident in this Commonwealth, and that he occupied the land sold to Combs as a homestead for himself and family; that the purchase money over and above the attached fund had been applied as directed by him to the payment of defendant’s indebtedness, a large portion of which consisted of mortgages upon the conveyed tract of land; that he had intended from the beginning to invest what might be left, if any, of the proceeds of sale, in a homestead but he had not done so because it had not been paid to him and he asked to be adjudged $1,000.00 of the attached fund as exempt to him under the Homestead Statute. The right of defendant to the exemption asserted by him was resisted upon the two grounds, (1) that defendant was
Waiving all other questions which might possibly be involved in the two contentions made by plaintiff as just stated, it is sufficient to say that the testimony heard upon the trial failed utterly to sustain either of them. On the contrary, it showed that defendant had never received any part of the purchase money for the farm sold to Combs, since all of it, except the attached fund, had been appropriated to the payment of defendant’s debts, and that he was and had all the while been a resident with a family in this Commonwealth. True, he had visited his daughter in the west and with his family was away from Kentucky on that visit about six months, but he left’the great bulk of his household furniture upon his old homestead, which he had sold to Combs and' it was stored in the residence which he had, prior to the sale, occupied with his family.
Indeed the two contentions of plaintiff above alluded to were abandoned upon the trial and are not urged upon this appeal. This leaves for our consideration only the ground upon which the trial court based its judgment, which is, that the default judgment above referred to, wherein plaintiff recovered his personal judgment for the debt against the defendant, and in which the grounds of attachment were sustained, fixed the right of the parties to the attached fund and defendant was estopped under the doctrine of res adjudícala to assert his homestead right at the time he did. In other words, that he should have answered the petition, incorporating the attempted assertion of such .right before the default judgment was rendered, and not having done so his right to do so was barred.
Preliminary to considering that question it should first be determined whether one entitled to the homestead exemption provided by'our statute may voluntarily sell his homestead and the proceeds be exempt from the
In the Lear case it is said: “If the owner.sells his homestead and converts it into money with no purpose of re-investing the proceeds in property not exempt from execution, the protection the law affords him against the claims of creditors is- gone.” In the Cooper case, this statement is made: “It is said that the answer does not disclose that he (defendant) sold the first farm with the intention of re-investing' in a homestead,” but-the court disposed of that objection by saying: “We think this con
Upon the res adjiodieaia estoppel forming the basis of the judgment below, but little need be said. In support of it we are referred to the case of Wren v. Cooksey, 155 Ky. 620, and cases therein referred to, which hold in substance that a judgment upon a properly presented issue is conclusive as between parties and privies of all questions which were, or could have been presented upon that-hearing. The .rule contended for'is both ancient and undisputed. In order, however, for it to find application the first judgment must have involved and necessarily determined the same issue involved and sought to be determined in the subsequent proceedings in which the plea is relied on. In the Wren case the facts were that a homestead was attached followed by a judgment' which not only .sustained the attach
Defendant also claimed additional exemption of $40.00 for each member of his family in lieu of provisions, etc., not on hand, but the statute making such al
It is therefore our conclusion that defendant should have been adjudged the sum of $1,000.00 of the attached fund as exempt to him under the Homestead Statute, and the judgment is reversed with directions to set it aside, and to enter one conforming to this opinion.