Meguiar, Helm & Co. v. Burr, 81 Ky. 32

Meguiar, Helm & Co. v. Burr

81 Ky. 32 | Ky. Ct. App. | 1883

JUDGE PRYOR

delivered the opinion of the court.

In this case the two appellees held and owned a joint interest in a tract of land, made up of smaller tracts purchased *33by the two. They are the owners of the entire estate, and no partition has ever been made. The appellants, who are judgment creditors, are appealing from the judgment below, and say that the chancellor, in subjecting- this land to the payment of their joint indebtedness, had given to each of the debtors a homestead, and this is assigned for error.

The question raised in this case has been decided in different ways by the courts of several of the States, but we think a proper and liberal construction of the statute of this State sustains this judgment. The purpose of the statute is to secure to the unfortunate debtor a home for himself and family; that his family may have a roof to shelter them, although the parent may be involved in debt. Here the debtors are living in separate buildings, erected by each as a home for himself and family, and the only reason that can be urged against the right of exemption is, that, the land has not been partitioned. If they had made an agreement marking the line dividing the joint estate, their right would be unquestioned, and it would be extremely technical, in the construction of such a statute as that under which the homestead is claimed, to say that, because the boundary is not defined or the title severed, the right to the homestead, as to one of the joint owners, is gone. Some of the decisions deny the right on the ground that the debtor owns nothing in severalty, and therefore, in allotting the homestead, the chancellor might assign to the particular debtor that portion of the estate that would, in the partition, be assigned to a co-tenant. This difficulty can only syise when the tenants undertake to make partition, and in this the creditor has no interest, unless made with a view of defrauding him.

*34The interpretation given the statute is in accordance with the legislative will, and a joint owner of the land who is living upon it with his family in a home that he claims and recognizes as his homestead, is such an owner as comes within its humane provisions. (Thompson on Homesteads, page 182; 14 Iowa; 39 N. H.)

Judgment affirmed.