78 Ky. 630 | Ky. Ct. App. | 1880
delivered the opinion of the court.
This is an action to secure the allotment of a homestead out of property sold under execution. Two questions are presented:
First. Is the petition sufficient? It states, that at the time of the levy and .sale under execution appellant was a housekeeper, in good faith, with a family, and occupying as-a homestead the premises sold, but does not allege that the improvements were made prior to the creation of the debt. It is insisted that, by reason of the failure to so allege, the petition is fatally defective. We think not. The homestead exemption is given in section 9 of article 13, chapter 38, of General Statutes, while the exception referred to is in section 16 of the same article, which provides that the homestead shall not attach “if the debt or liability existed prior to the purchase of the land, or of the erection of the improvements.” When exceptions to the general provisions of a statute are found in a distinct clause, it is not necessary to allege that the complainant does not come within the exception. (Commonwealth v. McClanahan, 2 Met., 10; Stephens on Pleading, —.) The statement of the facts as set up in the petition made a prima facie case within the statutory exemption, and devolved the duty on appellee to-allege and prove that appellant was excepted out of the general provision.
It seems to have been held in Texas, Mississippi, and Nevada that an occupancy at any time prior to the sale is sufficient to entitle the occupant -to a homestead. (Thompson on Homestead Exemptions, sec. 246.) We will not stop to inquire how far the decisions in the states mentioned are authority here by reason of the similarity of the statutes, because it appears to us that the homestead statute in this state is subject to but one construction, and that is, that if the land was purchased or the improvements made prior to the creation of the debt, the homestead right attaches when the claimant is in occupancy as a housekeeper in good faith at the time the attempt is made by execution to subject the land. The clause of the statute giving the homestead is general in terms, allowing the exemption to all bona fide housekeepers with families, and without reference to the time at which the homestead may have been created by actual occupancy. The 16th section of the 13th article of chapter 38 provides that the exemption shall not apply if the debt existed prior to the purchase of the land or prior to the •erection of the improvements. This seems necessarily to imply that if the purchase of the land or the erection of
The demurrer to the answer should have been sustained.
Judgment reversed, and cause remanded, with directions .for further proceedings.