Mason v. Columbia Finance & Trust Co.

99 Ky. 117 | Ky. Ct. App. | 1896

CHIEF JUSTICE PRYOR

delivered tiie opinion of the court.

The sole question to be determined on this appeal is whether, or not the appellant, John Mason, is entitled to a homestead in certain real estate conveyed by him to A. A. Hazlerigg for the benefit of creditors.

The appellant, Mason, and his wife owned jointly a tract of 312 acres of land. The wife owned a part of the tract laid off and designated by metes and bounds in her own right, and the land owned by the husband adjoined the land of the wife, the entire body of land owned by husband and wife containing 312 acres, and used and cultivated as one farm. The house in which they lived was on 25 acres of the land to'which the wife had the fee, and the husband’s land bordering upon it. The insolvency of the husband caused an assignment for creditors, and in the distribution of assets, his land having been sold, he was denied the right of homestead, or its value, and has appealed.

The case of Vanmeter v. Vanmeter’s assignee is relied on as sustaining the judgment below. In that case the husband assigned, having a right of courtesy in a tract of land of his wife, upon which he lived, worth more than $1,000, and this court held he was not entitled to a homestead in both tracts. The land on which he lived or his life estate in it being worth $1,000, and living upon it, he must take that and not his homestead in the tract to which he had the fee. It is insisted that to enable the appellant to assert his right he must have actually lived on the land to which he had the fee, and this is the general doctrine on the subject, and often controls the decision of such questions. In this case the appellant, in contemplation of the statute looking to both the letter and spirit of its provisions, was living on the land to which this right is asserted. It was all one tract, so regarded by the parties, used, cultivated and claimed as one tract, and because the house is outside of the boundary of the land to which the husband had the fee it is insisted no right' of homestead exists.

The interpretation given the statute by this court is, “that it depends (this right) upon the present and actual purpose and intention of the debtor to use and enjoy the property sought to be exempted as a home for himself and family, and that the right does not exist where the debtor and his family are permanently located elsewhere.”

We think that looking to the purposes contemplated by the statute, that of securing to the debtor this exemption for himself and family, it can not well be maintained that this residence on the ■ one tract of land must be regarded as a permanent location, claimed for no other reason than that the home happened to be located on the land owned in fee by the wife.

In the case of Lowell v. Shannon, 60 Iowa, 713, it was held that where the husband and wife own contiguous tracts of land, and occupy the two tracts as a homestead, with the dwelling on the land of the wife, the wife was entitled to a homestead in the adjoining land of the husband. That the husband occupied this land sold for creditors as a homestead is, we think, unquestionable.

Judgment reversed, with directions to award the homestead in money, as .the. land has been sold, and direct its payment to the appellant.

Judge Hazelrigg not sitting.