128 Ky. 79 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
In the year 1872 Simeon Turner bought of his father, John A. Turner, a tract of land, and moved upon it with his wife and two children, using it as a homestead. He paid his father in October, 1872, $400, in March, 1873, $600, and on August 2, 1873. $480. He got $1,900 from his wife, and the money paid his father came from this fund. On February 4,1875, he gave a note to James Browning for $159.37. In March, 1875, he traded with his father the piece of land he had bought for another piece of land; his father paying him $30 in the trade. He moved to the second piece with his wife and children, and has since used it as a home. His father having died, his brothers and sisters on March 31, 1891, executed a
It is insisted for Browning that the proof showed only a parol sale from John .A. Ttirner to Simeon Turner, and. the latter took no estate or interest in the land by reason of it. Usher’s Ex’r v. Flood, 83 Ky. 522, 12 Ky. Law Rep. 721; White v. O’Bannon, 86 Ky. 100, 9 Ky. Law Rep. 334, 5 S. W. 346; Newburger v. Adams, 92 Ky. 26, 13 Ky. Law Rep. 339, 17 S. W. 162; Asher v. Brock, 95 Ky. 270, 15 Ky. Law Rep. 631, 24 S. W. 1070. It was held in these cases that a verbal sale of land is void, and confers no interest whatever, except such collateral equities as may arise out of the transaction. And while this is true, Simeon Turner, having settled upon the land and having paid his father for it, had a resisting equity which he might assert against his father, and he would have been adjudged a 'lien on the- land for the consideration paid; for his father would not have been allowed to
The case, therefore, turns on the question whether the defendant, after he had settled upon the first tract as his home with his family and had paid for it, was entitled to a homestead in it as against a debt after-wards created. As he was in possession of the land and had paid for it, although he could not enforce against his father the parol contract to convey it to him, the court would not have disturbed him in possession without a return of the purchase money. Speers v. Sewell, 4 Bush, 239; Wade v. Norman, 5 Ky. Law Rep. 689; Usher’s Ex’r v. Flood, 83 Ky. 566, 12 Ky. Law Rep. 721; Asher v. Brock, 95 Ky. 270, 15 Ky. Law Rep. 631, 24 S. W. 1070. In a note to Pryor v. Stone, 70 Am. Dec. 344, it is said: “A homestead right is not an estate in the land, but a mere privilege of exemption from execution of such estate as the holder has. Note to Poole v. Gerrard, 65 Am. Dec. 483. Upon principle, therefore, there is no reason why the law should concern itself at all with the nature, extent, or value of the homesteader’s estate or interest in the premises. If he has no title, or a defective or limited title, that is his misfortune; but why should that misfortune be increased by depriving him of the privilege of holding such interest as he has free from the claims of creditors'? Is there any imaginable reason why a bad title should be liable for the owner’s debts, where a good title would not bo? That the nature or quantum of a debtor’s estate in his homestead is immaterial in determining whether it shall be exempt is in accord with what is laid down in the better considered cases.” This rule
While there is some conflict of authority on the subject (see 21 Cyc. 502), we think the rule we have stated is in accord with the spirit of our statute and the construction which it has heretofore received. The conflict in the authorities on the question is more apparent than real. In Ketchin v. McCarley, 26 S. C. 1, 11 S. E. 1099, 4 Am. St. Rep. 674, the defendant had conveyed the land to another and had no interest in it. In Webb v. Garrett, 30 Tex. Civ. App. 240, 70 S. W. 992, the defendant was a cropper, and had no interest in the land, but only in the crop. In Stamm v. Stamm, 11 Mo. App. 598, the homestead was claimed by a divorced wife against her husband in his real estate. In Johnson v. McPherran, 81 Iowa, 230, 47 N. W. 60, the defendant had made a conveyance of the land to defraud creditors, and the rule was applied that the law in such cases will leave the grantor where it finds him. In Bunting v. Jones, 78 N. C. 242, the defendant had obtained the deed by fraud on a promise to execute a mortgage back for the price which he then failed to execute. In Kitchell v. Burgwin, 21 Ill. 40, the right to the homestead was not finally denied. In Denis v. Gayle, 40 La. Ann. 286, 4 South. 3, the judgment turned on the construction of the statute and rests on principles not recognized by this court. In Wisner v. Farnham, 2
Here the defendant has a deed to the property, and the only question is whether he purchased it before the creation of the debt within the meaning of the statute." As the exchange of one tract for the other had no effect on the right to a homestead, the case would be essentially the same if Simeon Turner had made no exchange, but had continued to reside on the first tract and had received a deed for it after the debt to Browning was created. The fact that Turner moved from the tract in controversy to another one half a mile off, where there was a better dwelling house, using both tracts as a home and both being of less value than $1,000, had no effect upon bis right of homestead.
The conclusion we have reached makes it unnecessary for us to consider the questions raised by counsel as to whether the action was properly revived.
Judgment reversed, and cause remanded for a judgment as above indicated.