139 Ky. 810 | Ky. Ct. App. | 1905
Opinion op the Court by
Reversing.
Austin Stephens and his wife Jennie resided on a small farm of fifty-three acres in Kenton county, Kentucky, which was their homestead. In order to
B. F. Finnell, the father of Jennie Stephens, also sued Austin in the Kenton Circuit Court, and obtained a judgment against him for six hundred and fifty dollars, with interest from February 9, 1899, until paid. Upon this judgment, he caused execution to be issued and levied on the homestead, and the sheriff was proceeding to sell when Watson Stephens instituted this action against him and the sheriff to enjoin the sale, claiming the property to be his, under his purchase at sheriff’s sale. Prior to this, Watson Stephens had paid off the mortgage debt to Williams, the note and mortgage at the time of payment having been assigned to John W. Bryant.
Becoming convinced that he only obtained a lien, by the levy of his execution and the sale and purchase thereunder, on the encumbered land of his son, Watson Stephens amended his petition, making his son a party defendant, alleging that he had paid off the mortgage by mistake, believing the property to be his, and asking to be subrogated to the rights of the
In the meantime, Austin Stephens had deserted his wife, and left the State. He was proceeded against in the foregoing actions as a non-resident, and was before the court by constructive service only. Pending the litigation, B. F. Finnell died, and the action was revived in the name of his wife Maria Finnell, as administratrix of his estate. The appellant Jennie Stephens intervened in the case, alleging that the land in question was the homestead of her husband Austin; that they had resided on it since 1890; that he had deserted her and her two little children, and asked to be allowed to defend for her husband, and establish her homestead right as against the judgment debts hereinbefore described. Watson Stephens controverted all the material allegations of her intervening petition, and the issues being thus made up, the evidence was adduced. Watson Stephens was permitted, without objection, to testify against his non-resident son, and, for some reason, Jennie Stephens introduced no evidence whatever to substantiate her claim of homestead as against the debt of her father-in-law. Upon final submission, the chancellor adjudged that Watson Stephens had a first lien on the homestead for the amount paid to the holder of the mortgage, amounting with interest to four hundred and thirty dollars; that he had a second lien for his debt of eight hundred and one dollars and fifty-three cents with interest and costs;
The case of Baum v. Turner, 25 K. L. R. 600, was in principle identical with the case at bar. After citing the foregoing sub-section of the Code, it was said: “This authorized the wife to bring the action for her husband who, it was alleged, had deserted her. They were housekeepers when he left. She remained in the house after he deserted her, continuing to keep house, and the question to be determined is, did uhe property which was exempt before the husband deserted her become subject to his debts thereafter? The property was his; he might dispose of it as he saw fit, and do as he pleased with the proceeds up to the time of the levy of the attachment as far as appears. The petition does not show a severance of the domestic relations. However protracted the abandonment may have been, the parties constituted ‘ a family ’ in law. ’ ’
The appellant insists that the judgment against her husband ordering a sale of his homestead was
Austin Stephens was before the court by constructive notice only; it was, therefore, error to sell his homestead without the refunding bond required by law. Morrison v. Beckham, 96 Ky. 72; White v. Moyers, 17 Ky. Law Rep., 402; Tatum v. Gribbs, 19 Ky. Law Rep. 696. In White v. Moyers it was held that the non-resident, himself, did not have to appeal to make the error of not giving bond available; that, if it appeared on the appeal of a co-defendant, the court would reverse for the omission.
The position of the appellant is indeed pathetic in its isolation. Deserted by her husband, who left her with two infant .children to support, she-is sued on the one hand by her father-in-law, and on the other by her own mother and father, whose actions, if successful will result in turning her and her children out of their home. While the hardness of her lot does not warrant us in unduly straining the law. to uphold ■an invalid claim in her favor, she is entitled to the
The judgment is reversed with directions that she be permitted to adduce such evidence as she can to uphold her right to homestead as against the liens sought to be enforced upon it, and to file exceptions to such incompetent evidence as may have been produced against her.